§ Debate resumed.
§ 4.18 p.m.
§ Lord RAWLINSON of EWELL
My Lords, it falls to me to take your Lordships out of the clear, cool waters of inflation, gas and electricity, and back to the murky subject of pornography. Before doing so, may I say that it is fewer than two years since I was asking for the indulgence of your Lordships in my maiden speech so it is almost an impertinence that I have the pleasure of being able to tell the noble Lord, Lord Strauss, with what great delight the whole House heard his distinguished maiden speech. It is a particular pleasure for me because in the latter part of my time in another place he was the "father" of that place and I sat under his chairmanship in the Committee of Privilege. To hear him again—and to see him again—is a personal delight. I know that the noble Lord will go on to entrance and inform this House as he did another place—and I hope for an equal number of years.
The committee whose report we are debating this afternoon took two years to consider this matter. They considered it in very great depth. It was laid before Parliament only in November 1979. It is the fruit of extensive work and calls for much study and reflection. It is a very short time since that report became available to individuals on which to form definitive opinion. Certainly the time between November 1979 and January of 1980 is far too short for anyone to represent or reflect what is public opinion on this matter.
144 Therefore, this debate, with great respect to my noble friend Lord Nugent of Guildford, must be a very preliminary essay into a very complex and difficult subject, with all of us, I presume, merely expressing our individual reaction. As my noble friend said, this is a very well written and skilfully presented report, as you would expect, because the committee was under the leadership of Professor Williams. Anybody who knows anything of Governments knows that when they appoint Royal Commissions or committees of inquiry, the most important thing to do is to select the chairman. If you select your chairman with skill you may get the report you probably want to get. I do not say that Professor Williams was the person who wholly and solely made this report, because it was a unanimous one, but it reflects his ability and, I should imagine, also much of his general attitude to the problem.
The work of Government committees and Royal Commissions is something to which we must all pay enormous respect. It is the depth of inquiry which matters and which therefore merits serious study and reflection. It is a foolish impertinence superficially and immediately to criticise people who have done a great deal of work on a very complex subject. They have heard the evidence, read the submissions and studied overseas systems. They have come up with their report and it should never be lightly rejected. Having said that, I immediately go on to say that I cannot find it acceptable and I come to a basic disagreement with it. But the subject is certainly complex and difficult and, apart from any of the social and moral questions, which I will deal with in a moment, the matter of offences concerning pornography poses enormous problems for the prosecuting authority.
For two particular periods I was personally involved in some responsibility in that area. In the period from 1962 to 1964, as Solicitor-General it fell to me, concerning the 1964 Obscene Publications Act which was introduced by Mr. Roy Jenkins, to be the Law Officer concerned with that Act. The assurance, as Solicitor-General, referred to on page 14, paragraph 2, sub-paragraph 16 of the Williams Report, was given by me in Committee in another place. Of course, it was that Act which followed the prosecution of Fanny Hill and the case of Lady Chatterley. The 145 purpose of that assurance, which I then gave as Law Officer, was to assure publishers that literate works would not be seized for forfeiture by justices of the peace but would be prosecuted, to enable publishers to advance the new defence of "public good", because at that time the great problem which was apparently presenting itself to publishers was that if their works were just seized and forfeited they did not have the chance of being prosecuted before a jury and of being able to advance the defence of "public good".
I accept that certainly did not meet the criticisms of the law; but now new conditions have arisen over the past few years so that there is a massive publication of magazines and massive quantities—almost cargoes—of foul filth, sometimes merely set out in stylographed form, literature which is imported into this country and for which seizure and forefeiture is the only practical remedy.
To those people who think that pornography and the defence of freedom of speech and freedom of literature is the main issue here, I would say it seems to me that the main issue is the vast exploitation of people by the filth which is turned out all over the world, which is brought into this country and from which people are making vast sums of money. It is those people for whom there must be an adequate and appropriate law to prevent their getting the profits from such vile and filthy trade.
My second period as a prosecuting authority was the time to which the noble Lord, Lord Strauss, has been referring, when for the first time there was the possibility of a prosecution being considered under the Theatres Act, when I was Attorney-General. That was when the play Oh! Calcutta! was presented to the public. I took the advice of Treasury counsel, who had to go to the play and sit through it and then advise me whether he thought a prosecution under the Theatres Act would succeed. He thought it would not, and so with great relief I was able to forgo prosecution—because it should not be forgotten what enormous pressures there are on the prosecuting authority, not only from those who do not want a prosecution, but from those who do want one. The difficulties of a prosecuting authority in making up 146 their minds and balancing the public interest on each side are indeed formidable. The difficulties under which the prosecuting authority is placed in the administration of this law are indeed grievous, but the law is certainly unsatisfactory at the moment.
Just to present part of it to your Lordships, when you think of the "deprave and corrupt" provision, a jury may find that a matter is obscene, in the sense that it depraves and corrupts, and then can meet and accept a defence which says that even though it can deprave and corrupt, nevertheless it ought to be published under the "public good" principle. It really is a nonsense. Therefore I think a law change must come about but I do not believe that the present law has been so draconian as to deprive writers, artists and publishers of their basic freedom. I do not believe there are many great writers who would say: "I daren't write that or have this published because I shall be so misunderstood that I will be prosecuted in the courts". I do not believe that is the situation. It may be partly due to the administration of the law by the Law Officers and the Director of Public Prosecutions. I very much regret to notice in another place formal criticisms of the Director of Public Prosecutions, whose decision, as I say, has usually been accepted in both Houses of Parliament as that of an independent officer taking a decision in accordance with the principles which he has to take note of and which in this field are, as I have said, intensely difficult.
Therefore, before I come to the main matters, I have considerable doubts about one proposal of this Committee—that to remove the right of individuals ever to institute proceedings in these cases. The desire seems to be to take away from the individual every right of every citizen and to put matters into the hands of authority alone. I have always believed that it is dangerous to limit prosecutions to public authorities. There should always be, save in cases of state security, that reserve power of the individual who can bring the prosecution.
My main objection to the present law is that it is ineffective and uncertain; and yet I cannot accept the solutions presented by the Williams Committee. The noble Lord mentioned Mrs. Mary Whitehouse. 147 I consider Mrs. Mary Whitehouse a person of great integrity and great courage. There has been a high level of sneers and abuse from unrepresentative so-called "trendy" people towards a woman who has stood up and spoken up for that which she believes in—and indeed her ideas are shared by many other people. She has done that with dignity and resolution and I do not believe that anybody should ever criticise her for that. Smart and glib interviewers who are riding the popular tiger are the persons, I think, who are less to be admired than someone with the guts and spirit of Mrs. Whitehouse. She has done much to represent the views of many who are neither fools nor prudes.
Another writer was referred to in this report: David Holbrook. He has expressed the view in letters and in books that there is a debased sexuality being thrust into our consciousness through the mass media—a corruption of culture by the trendy. It is significant that he claims his books can no longer be reviewed because editors often disagreed with the stand he has taken. I believe that he has played an important and significant role and, even if you do not agree with him, his voice should be heard and his claim taken very seriously.
The committee has certainly shed much light on problems, but it has taken the yardstick of harms caused by the existence of pornography and does not appear to have accepted any moral principle on which to base the legislation. I suppose that there will be some—perhaps many—who will think that acceptable and it is certainly explicable in a society so widely materialistic and agnostic. Therefore, though I share the opinion that the law required some change over the question of depraving and corrupting, and welcome the committee's acceptance that the law has to be practical and effective, I wonder whether it is not dangerous if a small committee of excellent people, with a mass of technical evidence, come to conclusions which may not reflect or may not understand the deep feelings of the general public.
On one occasion, if I may paraphrase it, Lord Melbourne said:All the clever men were on one side and all the damn fools on the other, and, egad, Sir, the damn fools were right".148 I believe that in some of these matters affecting how people think the society in which they live should be, it is the so-called damn fools who are sometimes very much more sensible than the clever people who think that things should be altered. The committee decided, according to its report, not to publish a draft Bill, which I should have liked it to do, although it claimed that its proposals were capable of being put into legislative form. Having borne some responsibility in the past for some prosecutions, I should have liked to see how the committee would turn this into effective law, because it is something which has caused very great difficulty.
In my view, it is premature to call for early legislation. This important report requires greater study, but I doubt whether the basis of harm caused by the existence of material alone can justify prohibitions. Surely a thing can be evil in itself. and it is a sad and a sick society which has not the courage so to hold. So I invite the Government to proceed in this matter with great care and with very great caution, to allow more time for public reaction and to ponder very seriously indeed before accepting this report. It is a report which is of great interest, and parts of it have much merit, but, in my opinion, its basic answer is unacceptable.
§ 4.33 p.m.
§ Lord GARDINER
My Lords, my first task, and indeed pleasure, must be to congratulate my noble friend Lord Strauss on his maiden speech. It is a great asset that in all parts of the House we have Members with very great detailed experience in particular fields, and I think that my noble friend was wise to wait until he had a subject for his maiden speech on which he is an acknowledged authority. I remember well supporting the appointment of the Joint Committee on the Theatres, of which he was the distinguished chairman, which produced an admirable report and resulted in a very sensible state of affairs in the theatre. He has been the Father of the other place. I hope that he may live long enough to be the Father of this place also, and that we shall hear from him again both soon and often.
I must thank next the noble Lord, Lord Nugent of Guildford, for giving me an opportunity, and indeed for giving the 149 House an opportunity, to consider this report. As the House may remember, from what I said when my noble friend Lord Longford gave us a similar opportunity in relation to the May Report on Prisons, I am in favour of Royal Commissions and departmental committees. Unfortunately, as I then pointed out, so far as Royal Commission reports were concerned, two out of three had not been discussed in either House. I have since then asked a Question about departmental committees in the last five years, because I did not want to go back as far as the other question. The Departments of Employment, Trade and Health and Social Security said that it would cost too much to answer, but the other 24 had no such difficulty.
They said that between them in the last five years there have been 123 departmental committee reports, of which only 11 have been discussed in either House of Parliament. That is 10 to one against. It seems to me that these bodies work very hard, they are usually financially out of pocket, they take up an enormous amount of time and, apart from anything else, if their reports are not discussed it is extremely discourteous. While I follow the point of the noble and learned Lord, Lord Rawlinson, that this debate is a little early, I think better early than never.
This committee was unanimous, which is not as common as one would like. So often there are many dissenting reports, but here is this very well-known field for dispute and yet, at the end of it all, a headmistress, a distinguished professor acting as chairman, a communal relations officer, a solicitor, the film critic of The Times, a judge, a retired chief constable, a bishop and so on unanimously reported, having received written evidence from 114 separate bodies, so many letters from individuals that they could not count them and having heard 123 oral witnesses, some of whom represented 33 different bodies. This unanimous report is something which we should indeed take seriously.
The first point that I should like to make is simply this. There are three questions which we have to answer. First, "Are you happy about the existing law on pornography, or do you agree with the committee that the whole thing is 150 really in an appalling mess and needing a radical reform? "If the latter then, secondly, "Do you agree in the main with the proposals of the committee?" Thirdly, "If not Williams, what?" We have heard most interesting speeches on the first two. No doubt, among the other speeches there will be more answers to the third and important question, with which I suppose the Government will be particularly concerned: "If not Williams, what'?" It is, I suggest, illogical to say, "I do not agree at all with the committee as to how far pornographic books do people harm. Therefore, I do not accept the recommendations." I suggest that that is a complete non sequitur that we give to illustrations.
There are no speeches we hold in higher regard in this House than those of the noble Earl, Lord Halsbury. We all know that he takes a very strong view about pornography. In the debate in 1976 he put forward the proposal that pornographic matter should be confined to licensed shops. They should have to make a deposit. They should have on them "Licensed pornography" but nothing else, except a Government warning "Pornography corrupts and depraves". There should be no other display. They should not be nearer than a certain distance to certain places, such as railway stations. No other goods should be sold there and only adults should be admitted.
That is a large part of the Williams Report. I am not saying that the noble Earl has a cause of action for damages for infringement of copyright against the Williams Committee. But, for its first thoughts, the Williams Committee would have had to look somewhere. I do not know—because I have not been in touch with them—but I suppose it not unlikely that they took the precaution of reading the reports of recent debates in both Houses. If so, it would not be rational to go on to say, "Because pornography does harm, therefore I do not accept the report".
Another example comes from a fairly respectable paper, which is called the Law Society's Gazette. In reviewing the Williams Report on pornography in the issue of 19th December, the writer makes plain that whatever the commission in America may have said about there being no clear evidence that pornographic writ- 151 ings do anybody any harm, and whatever the Williams Committee may have said, he strongly disagrees. Then he goes on to say:They"—that is the committee—were faced with a real problem—what are we to do about the torrent of evil gushing through our news-stands, booksellers, theatres and cinemas? Their approach was cautious and open-minded and their solutions can be turned into workable and enforceable legislation".He says further on:These proposals are a practical method of controlling a social phenomenon which is rapidly getting out of hand".So it does not follow that, because you think pornography does harm, you are against these proposals.
The only part of the report I want to mention, because it is the part to which I hope the noble Lord, Lord Belstead, will particularly direct the Government's attention, is that in which they have summarised the evidence given by this horde of witnesses. It is interesting to see how far most of them agreed with the general lines of the committee's proposals. In paragraph 9.3 they say:Sir Geoffrey Howe, MP, commended to us the idea that if the law were effectively to meet three areas of legitimate concern, corruption of the young, affront to public decency and invasion of privacy, then society's grievances would be so well satisfied that more general restraints on obscene publications might no longer be needed. Mr. Norman St. John-Stevas, MP, made a similar proposal in an article in The Observer in February 1976, suggesting that the law should be shifted on to a basis of public nuisance … Lord Justice Lawton expressed the opinion to us that the right approach was to regard pornography as a public nuisance and that the law should therefore concentrate on containing it rather than prohibiting it".They went on to say that it was to be expected that bodies to whom the idea of freedom of expression was paramount, such as the Society of Authors, the Writers' Guild and the Defence of Literature and the Arts Society—I must confess here to a bias because I am the President of the Defence of Literature and the Arts Society—should regard a law against public nuisance as more acceptable than one aimed at total suppression. Then they said that many others were of the same opinion.For example, the National Federation of Women's Institutes told us that there was a general 152 feeling among their members that it was impossible to suppress pornography and that this, coupled with views about individual freedom, meant there should instead be strict supervision over its sale so that it would be less easily accessible to children and less likely to offend ordinary people. The Penal Affairs Committee of the Society of Friends considered that the control of pornographic material, particularly ensuring that people are not unwittingly exposed to it, was preferable to attempting to prohibit it".Then they set out the views of the Liberal Party, about which we have already heard from the noble Lord, Lord Wigoder. They said that the same views were expressed by the Mothers' Union, the Magistrates' Association and the Police Superintendents' Association of England and Wales, who all put forward the viewthat there might be special closely-regulated or licensed shops to which the sale of certain material should be confined".They went on to point out that the opposition consisted almost entirely of Mrs. Whitehouse and the Festival of Light and, of course, Mr. Anderton, the Chief Constable of Greater Manchester.
I am not at all an authority in this field. I must confess that I always intended to go and see, Oh! Calcutta! but whenever I got a night off to go to the theatre I always found that there was something else which I wanted to see more—which was a pity. But I expect that I have read the same sort of standard of obscene books which most well-to-do people have read.
My experience at the Bar in this connection has been entirely limited to two cases. The first was the case of—I wish I could remember its name. However, the author was a Catholic—this might interest my noble friend Lord Longford—who described the book as "the story of a soul's approach to God". The soul in question belonged to a woman who got into bed with various men. Ultimately she became a Catholic convert and the books ends with her in the arms—metaphorically, of course—of a Catholic priest. I hope my noble friend will regard that as not unsatisfactory. But in describing what she did when she got into bed the author was a good deal more explicit than was customary in those times. In reply to that, the author said, "I did it on purpose. If I had just published a sermon, nobody would have read it".
At the first trial the jury had disagreed. I was not in that trial. However, the counsel for the defence was appointed 153 to be a judge, and I was appointed to appear for the defence in the second trial. As a result of that case I received two impressions, although both may be wrong because they were not based on a great deal of material. As a result of thinking about this, which to me was then a new subject, I came to the opinion that there are a certain number of people who feel very strongly about almost any form of pornography, from which they think they should be protected, and that there are a certain number of people who feel very strongly about freedoom of speech. Both of these groups are probably minorities, but with juries in those days having to be unanimous you were not unlikely to find them on juries. Usually I think that a minority on a jury tends to give way to the majority but not, I think, if they feel very strongly about a particular subject.
Secondly, I formed the view, rightly or wrongly, that men are wrong on this subject when they think, as most of them do, that women will be very shocked by pornography. Women undoubtedly differ, as men do. But I do not believe that this is the case at all. On the contrary; I believe it is the men who are shocked. Women are much more down to earth about sexual matters, possibly because they have to be. Certainly in this particular case it was the two women on the jury who were nodding in agreement all the time with the defence, and the jury ultimately disagreed for the second time.
I will, if I may, reply to the point which was made about individuals, rather than the Director of Public Prosecutions, being able to bring an action. I think that this is most inadvisable. What happens is that their judgment is not as good as that of the Director of Public Prosecutions. I am speaking from memory, and I may be wrong, but there was a book, which I shall describe as an awful book, called Last Exit to Brooklyn, which I believe was the subject of a private prosecution. When there was an acquittal everybody rushed to buy it.
§ Lord RAWLINSON of EWELL
My Lords, if I may correct the noble and learned Lord, the conviction at the Central Criminal Court was quashed on appeal.
§ Lord GARDINER
Yes, my Lords; but human nature being what it is, every- 154 body wants to read what is next to the line. I have a friend—a woman—who feels violently against pornography. I was telling her about a case which I think was called The Philanderer, tried by Mr. Justice Stable. When he gave what was called a summing-up for the defence and asked the jury whether they thought it would be sensible that what an adult could read should be limited to what would be suitable for a school girl of 14, the jury acquitted. As soon as I told her that she said, "I must get it from the library". The fact of the matter is that everybody is curious. What leads people to read obscene books, to start with, is curiosity. You want to see what all the fuss is about, and the more fuss the more curiosity there will be.
The second case was Lady Chatterley's Lover. In that case, having the views I had formed, rightly or wrongly, about women, my "criminal" friends—by which I mean only those members of the Bar who normally practise in criminal courts, whereas my practice was mainly in civil courts—said to me, "I suppose you will challenge any woman on the jury". I did not say anything, but I did not agree with that. However, one's case is not one's case; it is one's client's case. So I thought it right to ask the clients what they thought, and I found that they agreed with me. So when it came to the point, I had two women on the jury. I challenged a number of men in the hope of getting a third woman on the jury, and I did get a third woman on the jury. There again it was perfectly plain that it was the three women on the jury who were nodding in agreement with the defence all the way through the trial.
The other thing which I learned was this. I had made it plain that of course I should make the point that in every university in Europe where English literature was studied as a subject, Lawrence was always included among the modern authors and of course all his books, including Lady Chatterley's Lover. It was only in England—his own country ironically—that it was a banned book.
But one always has to think to oneself, "What would I be saying if I were on the other side?", and I said that I was a little afraid of the riposte that Penguins ought to have been particularly careful about publishing, this book, not only 155 because it was a well-known book, the sale of which in England had always been banned but because it was a book by a reputable author and they must remember that if it was obscene, being a well written book it would do much more harm than a badly written book. Of course, I did not know whether that was true or not, and I said that I should like to find out the answer to that, because I might be able to call some evidence to the contrary. You can go and ask the experts, who I suppose are the doctors and the psychiatrists who treat the criminals, but I said, "There are some rather odd Left-Wing psychiatrists; do not go to them because they will only upset the judges. Go to the Right-Wing psychiatrists in the teaching hospitals". This they did. They went to three of them and all three said exactly the same thing, which was: "There is more than one cause of sexual corruption". The most usual cause, of course, is another person.
I have been through all the notes of all the cases I have had and I cannot find a single case in which anybody has ever been corrupted by anything that he has read. I have not told the Williams Committee about this, because I have not given evidence before them. That, of course, is in line with what they found and the American Commission found. It was disappointing to me because I could not use it. If that was right, all it showed was that the well-known Hicklin definition of obscenity was based upon an unfortunate and wrong assumption of fact. I was not particularly surprised because I had always wondered who were the people who are corrupted. The barristers and solicitors have to read the books. One has to take this seriously; I am assuming that people really do believe, supporting the noble Lord, Lord Nugent of Guildford, that out of a given number of people who read one obscene book—because all the cases relate only to one book—some of those who read one obscene book will be sexually corrupted. Well, the barristers and solicitors have to read the book; they are of all ages and nobody suggests that they are corrupted. The judges have to read the books—heaven forbid anyone should suggest that they have been corrupted! The jury do not get any danger money and I have 156 always wondered who it was that was corrupted.
§ The Earl of LONGFORD
My Lords, may I put a point to the noble and learned Lord? Would it have occurred to him that it is more dangerous to read a book of this kind for enjoyment than to read it in a critical spirit in the way he has just described?
§ Lord GARDINER
I do not know, my Lords. I have not tried that. But those are my experiences from those two cases. Finally, because I have spoken for quite long enough already, coming back to the last point, may I put a question to the noble Lord, Lord Nugent of Guildford. He may remember that in a debate which we had in this House in 1971 he proposed a solution: that is to say, he answered the question, If not Williams, what? His panacea was this: a censorship authority responsible for the whole range of artistic, literary and dramatic expression. I should like to ask him, respectfully, whether this will be a Quango or not. It would have to contain an enormous staff—the whole of English literature, ail the paintings, everything on the stage. every film in a cinema. Does it not raise an ethical question? If we really believe that out of any ordinary collection of people a certain proportion would be corrupted by reading one obscene book, are we really ethically justified in paying people to read nothing but obscenities month after month and year after year? I suppose they could be heavily insured but is money a sufficient compensation? There it is, my Lords, this is an interesting. report.
§ Lord NUGENT of GUILDFORD
My Lords, the noble and learned Lord obviously wants to have an answer to his question and I share the joke with him, which is also directed at the board of examiners which the Williams Committee would set up for films. They would be in the same difficulty. Personally, I do not favour that solution. It is nine years ago since I expressed that view, and if the noble and learned Lord has been good enough to read all my juvenilia he will have seen what I said in the 1976 debate, when I said that I thought we had better return to obscenity and possibly add indecency.
§ Lord GARDINER
My Lords, I am glad to hear that the noble Lord is a convert, at least on that point. Personally I agree 157 with all the recommendations of the Williams Committee, except that I do not agree with them about films, which explains the same point on film censorship. I think that is a mistake. I can see no sensible reason why films in cinemas cannot be treated like stage shows and theatres. With those exceptions, I think this is a very good report; I do not think that merely changing words is anything like the reform we need. The law is in a hopeless mess all round—it is extremely diverse; it badly needs simplification and rationalisation. I think the proposals as a whole are sound, that they will give protection where protection is needed, they will absolutely prohibit a number of things which can be done at the present time, they will sensibly restrict others and change the face of Soho overnight. My Lords, except for films I support the report.
§ 4.57 p.m.
The Lord Bishop of DURHAM
My Lords, I should like to start with an apology to the noble Lord, Lord Nugent of Guildford, for the fact that I may not be able to wait for the end of the debate. I had hoped to stay until the end but we are running rather slowly and I must catch the last train back to Durham. On the whole I welcome this report. I like its general tone, I respect the way in which it assesses such evidence as there is on the subject and, with one major exception to which I shall come later and to which other Members of the House have already referred, I agree with most of its recommendations. But I must confess to considerable anxiety about the section which lies at the heart of it, the section on principles, and in particular Chapter 5, to which the noble Lord, Lord Nugent of Guildford, has already referred. That is the chapter about the general principles of law, morality and freedom which are set out as a basis for the rest of the argument. These principles are of course much wider in their significance than the particular topic of obscenity. I hope that one of the effects of the report will be to focus attention on them and I intend to concentrate my remarks mainly on them.
We are introduced in the first paragraph of Chapter 5 to something called the "harm condition" and the point is made that all the witnesses to the committee in fact appealed to the harm condition, albeit in very different ways. It is difficult to see what else they could have 158 done because one does not have to be an old-fashioned utilitarian to believe that evil is evil because it does harm. What needs to be added, though, is that the harm may be of many different kinds. There is direct and indirect harm; there is short-term and long-term harm; there is physical, psychological, social and spiritual harm. But it seems to me that whether one is talking about crime or whether one is talking about immorality one is in some way or another talking about harm.
The report denies this in paragraph 3 by quietly adopting a much narrower definition of harm which then allows it to push questions of morality out of sight. I am not trying to be pedantic in drawing attention to the wide variety of meanings of the word "harm". The point is that in saying that they are adopting the harm criterion the committee seem to be saying something clear and signicant. In fact I suggest that it is not clear at all and that if harm is defined in a very general way then what they are saying is not significant either. If on the other hand they are deliberately choosing a narrower definition of harm then this choice itself embodies a value judgment, because there is in fact no such thing as a value-free concept of harm, any more than, as we see later in the report, there can be a value-free concept of offence.
The particular assumption chosen by the committee is that we ought to concern ourselves only with fairly immediate and identifiable harms to individuals, especially physical and psychological harms. And they go on in that chapter to quote the Devlin-Hart controversy to support their choice. I am sure many of your Lordships will know very much more about the history of the Devlin-Hart controversy than I do, but it is crucial to the whole argument of the report as well as to every debate in your Lordships' House on a matter of general social importance. My own view is that the report's treatment of the controversy in paragraphs 6 to 9 of their report is superficial, with all due respect to the distinguished authors, and this is the real point. The real point at issue in that controversy, as I read it, is how far protection of individuals from harm necessarily also entails the protection of those institutions under which the individuals live. That is the crucial issue in that controversy. And since the 159 most basic social institutions—of which monogamous marriage is, I suppose, an obvious one—entail within a society a whole network of assumptions, feelings, conventions and expectations, the practical question for the legislature is how many of those assumptions, feelings, expectations and so forth can be eroded before a particular institution of society is threatened.
I am not for one moment suggesting that pornography and obscenity are now seriously threatening the whole institution of marriage. My point is a much wider one than that. It is that basic judgments about values cannot be ignored or sidestepped by legislators however hard they try, because whatever you do in terms of legislation embodies value judgments. Therefore a report which deliberately tries to play down this aspect of things, or conceives it too narrowly, however sensible it may be in its actual recommendations, is not in the end helping the process of good government because it is fudging part of the issue.
Let me turn to what is said on the other side in Chapter five, namely about freedom of expression. Here the chapter quotes very tellingly from John Stuart Mill. But I wonder how far it is true that Mill's market place of ideas is the real inspiration behind all contemporary demands for freedom. There is another variety of liberalism which does not have truth as Mill conceived it as its goal but rests rather on a sort of indifferentism, the belief that one idea is as good as another because in the end all are equally false. And freedom to express anything because in the end nothing ultimately matters seems to me qualitatively different from the freedom that the report is very properly trying to safeguard.
The Committee described in Chapter 6 how some of their witnesses wanted to press their fears about general moral decline on to them, and these witnesses obviously received fairly short shrift. But, again, I wonder how wise the committee were in trying to separate the rather narrow sort of harms which can be studied by statistical comparisons from these much more general considerations about the health of society. The committee's refusal to define obscenity and to concentrate instead on the notion of 160 offence is all of a piece with this sidestepping of the question of values, and it is this that I regard as the main burden and the main error of Chapter 5.
I see the point of trying to make this decision and to concentrate on offence, and I think the formula that the committee proposed may well be useful in practice. But, as I have already suggested, it conceals the value questions which ultimately have to be faced, and in this instance the value questions are concealed under the word "reasonable". The noble Lord, Lord Strauss, in his admirable maiden speech has already drawn attention to this. My guess is that reasonable people, asked to decide what is offensive, will need more guidance than the report is willing to give them. I think it is a pity that a very sensible suggestion made by the Church of England Board for Social Responsibility about the definition of obscenity has not really been taken up and treated a bit more sympathetically in the body of the report.
The Church of England Board defined obscenity in terms of a fundamental assault on essential human dignity. Pornography on this definition is not necessarily obscene. What the board were trying to say is that the essence of the offence of obscenity is the element of deliberate assault, of destruction, of distortion and of degradation. This is the dangerous element in obscenity. It may well be distinguishable, too, by the element of malice which can motivate it. It seems to me that with some definition like this in the background it would surely be much easier for reasonable people to decide what is so offensive as to merit restriction and so destructive potentially of fundamental social norms as to merit outright prohibition. It would, of course, imply spelling out value judgments of a kind which the Committee was in general reluctant to make, but it is the failure to do this that I regard as the main weakness of the report.
Let me end by commenting very briefly on the recommendations where I am most alarmed by what the report is saying. Here I agree fully with what the normal Lord, Lord Wigoder, said earlier about recommendations Nos. 6 and 7 which would take all prohibition off the written word. It seems to me impossible to maintain this sort of distinction in a 161 kind of society where we have so many different forms of communication all of which overlap and where one can no longer draw hard and fast lines between them. But I am more concerned about the general social point behind this. What I am trying to argue is that the law, whether we recognise it or not, embodies certain moral values and therefore changes in the law, whether intentionally or not, change ways in which those values are generally regarded by society.
To have no limit on the extent to which the written word can deliberately assault human dignity and no limit to other material, apart from the two special categories set out in the report, seem to me to say something about a society in which freedom would be in danger of turning into indifference. To take up a rhetorical question which was asked earlier, do we really want today's pornography, the trash that comes in, to be the school textbooks of our children tomorrow? It also seems to me that this aspect of the report would open a very large door to unscrupulous commercial operators who have shown again and again that they can use well-intentioned legislation to their own advantage. So, I hope that these general recommendations, and in particular recommendation 6, will not be accepted by the Government, but that apart from the hesitations which I have expressed, the report will receive very careful and sympathetic treatment.
§ 5.10 p.m.
§ Lord TRANMIRE
My Lords, I am very grateful to my noble friend Lord Nugent of Guildford for giving us this opportunity of considering the Williams Report. I am particularly grateful to him for the very clear and concise introduction he gave which covered the whole report. I should also like to congratulate my successor in paternity of the House of Commons, the noble Lord, Lord Strauss, who, like me, was engaged in the House on the subjects which the Williams Committee were considering. I should like to assure him that whenever he takes part in our debates, whether we agree or disagree with him, we shall welcome his intervention.
The reason I wish to intervene is that from 1956 to 1958 I was a member of the Select Committee on Obscene Publications and after Sir Patrick Spens, later Lord Spens, 162 became Chief Justice of India and left the Commons, I had to act as chairman of that committee upon whose findings the Obscene Publications Act 1959 was based.
The Williams Committee has criticised the 1959 Act, and I thought that it might be helpful if I told noble Lords the reasons why we made certain recommendations that have come under criticism and perhaps give my views now, looking back, on what should be done about them. The Williams Report contains two main criticisms of the Obscene Publications Act. The first is that it condemns the "tendency to deprave and corrupt" test for obscenity, and describes it as "useless" in Chapter 9, paragraph 21. In paragraph 7 of our report we declared that it would be inadvisable to depart substantially from the definition laid down by Chief Justice Cockburn in 1868. Our reason for doing so was threefold. First, this definition of obscenity had, at that time, been accepted in the courts for 90 years and therefore we thought that it was something that the courts were quite used to. Secondly, it was, in fact, the test of obscenity laid down in the draft Bill submitted to us by the Society of Authors, and it was also supported by the Publishers Association. Moreover, the definition had been the subject of explanation and application by the courts in 1954 in two important cases—Rex v. Reiter and Rex v. Seeker. Therefore, for those reasons, we felt that this would not be the time for swapping horses in mid-stream and we made that recommendation.
I find it hard to accept that that test is useless when one looks at the figures that are put forward in the appendix to the Williams Report. If we look at the year 1974 we find that out of 434 prosecutions under the Obscene Publications Act, 433 cases resulted in a verdict of guilty. Noble Lords may think that that was a rather extraordinary year. Let us take the latest year, 1978, when out of 209 prosecutions there were 158 verdicts of guilty.
I realise the difficulty of inserting a definition into an Act. However, I do not quite follow the noble Lord, Lord Wigoder, who said that the obscene publications of today become the school text books of tomorrow. But, undoubtedly the meaning of words and the 163 social attitude to certain words change. By inserting a definition into the Act one tends to crystalise the situation and it may perhaps impede the passage of society's regard for certain matters. It is rather like Lot must have felt when he was wandering along and suddenly turned round to find that his wife had become a pillar of salt. Therefore, if one can, one should try to avoid putting a definition into a statute. At the same time, so long as the word "obscene" is used the House must realise that the test laid down in Regina v. Hicklin is likely to be applied.
I turn to the Williams Committee's solution. I cannot believe that we would be wise to accept the Williams Committee's suggestion of "what is offensive to a reasonable man". The right reverend Prelate the Bishop of Durham spoke a great deal on and explained very clearly the defects of Chapter 5, but at least it was looking at harm. When one considers "what is offensive to a reasonable man" one is departing from "harm" to "taste". I know that when we were compiling our report in 1957 there was a small minority on our Select Committee who suggested that a matter of taste should be applied. That was opposed by all our witnesses, who said that we must get at the harm of something and not merely apply taste. I personally believe that if we apply their definition it would discourage the suppression of a good deal of soft and hard forms of pornography.
The noble and learned Lord, Lord Gardiner, said, "All right, if not Williams, what? "I should like to suggest today that if we look at our report it would be interesting for noble Lords to read the evidence that was given by Sir Alan Herbert at that time. It was so good that we included it as a fourth appendix to the evidence of our report, but it was written in his very inimitable style and I suggest that it is well worth reading as light reading, apart from the great common sense that it contains. Sir Alan Herbert expressed a preference for the word "pornographic" instead of "obscene". I think that a certain amount of thought is required on this matter because "obscene" is an out of date, rather theatrical word. What we are talking about is pornography.
164 I have listened to the speeches by noble Lords in this debate and I have noticed how often, instead of talking about "obscene", they have talked about "pornography". I personally should like to see the scope of the present Act altered to cover pornographic and sadistic publications, displays and entertainments. If we did that, there would be no need to have a definition in the statutes for the words that I have suggested, and the courts would be left to define what is "pornographic" and "sadistic".
The second main criticism of the 1959 Act contained in the Williams Committee's Report is what is called "the public good defence". I want to make it absolutely clear that the Select Committee never recommended the words "public good" in its recommendation of this defence. The committee was equally divided on whether there should be a defence on the grounds of the literary or artistic merit of the work in question. Indeed, the recommendation appeared in the report only as a result of the casting vote of myself as chairman. With hindsight, I confess that I believe that that vote was miscast. I believe that the Williams Committee is quite right to say that as a defence the public good defence is misconceived. However, I would not go so far as to agree with them—as they say in Chapter 9, paragraph 41—that it is unworkable, because the verdict in the case of Lady Chatterley's Lover was obtained entirely as a result of that defence. Provided that the law is sufficiently strong to suppress pornography. I cannot believe that there is any need for such a defence.
However, I take issue with the report of the Williams Committee—and this was also the view of the noble Lord, Lord Wigoder, and the right reverend Prelate the Bishop of Durham—in its assumption that pornographic or sadistic material that is not illustrated should be legalised and so exempted from proceedings in court. That seems to be a quite naïve assumption on the part of those who have studied the trade in pornography, as my Select Committee had to do those many years ago. There is a very ingenious band of dealers in pornography who are in a very lucrative trade. If we exempt the written word, they will find very clever ways of getting salacious pornography on hire and on sale all over those parts of towns that are dedicated to that sale.
165 Therefore, I suggest that to advocate such a change at present is quite irresponsible. We must bear in mind the circumstances of today. In the last 10 years the number of persons found guilty of rape has increased by 50 per cent., and in the same period the number of persons found guilty of crimes of violence has increased by over 130 per cent. This is not the time to take risks such as are advocated in the report of the Williams Committee.
I believe that we, as a Christian nation, have a duty to clean up the moral filth in our cities. I also believe that we should stamp out those objects which excite lust, perversion and violence. This seems to me to be a very suitable matter to be put to the people of this country. I believe that if it is so put, a large majority of the people of this country today would be shown to be worried about the departure from the standards of even 10 years ago; they would be shown to be worried about the spread of pornography that is coming into this country—not the kind of novel about which the noble and learned Lord, Lord Gardiner, spoke, but the vicious glossy which is coming in. They would want those to be suppressed. I believe that there would be a vast majority against those parts of the Williams Committee's Report if they were to be put to the people in the form of a referendum.
§ 5.26 p.m.
§ Lord MONSON
My Lords, first, I apologise to the noble Lord, Lord Nugent of Guildford, and to the House for the fact that regrettably I shall have to leave before the end of this debate because of a very long-standing prior engagement. Next, I should like warmly to congratulate the noble Lord, Lord Strauss, on an admirable maiden speech, with virtually all of which I agreed. I want to congratulate wholeheartedly the Williams Committee on a really superb job. Their report is thorough and packed full of interesting but never irrelevant statistics and useful comparisons with other countries. It is also an honest report and a deeply thoughtful one. Finally, it is written in elegant yet straightforward English. It is a model of what such a report ought to be.
I thoroughly agree with most of what it says, in particular with the splendid 166 Chapter 5, and with most of the committee's general proposals, notably with Chapters 10, 11 and 12, and with such specific recommendations as the suggestions that prosecutions should be brought only with the consent of the Director of Public Prosecutions, that there should be no forfeiture of seized material without prosecution, that it should be illegal to send unsolicited material through the post, and so on. However, I am not sure that the committee's normally impeccable logic, reasoning and intuition is fully sustained in Chapter 9, specifically not in paragraphs 8 and 10 of that chapter which deal with the display of magazines in shops. In this particular realm of human activity we have a strange paradox. Nowadays bosoms are bared on bookstalls and on beaches the entire length of the Mediterranean, from Albufeira to Antalya; in other words, from the Roman Catholic world, through the Greek orthodox world, into part at any rate of the Islamic world. Yet in allegedly semi-pagan Britain this committee proposes that we largely ban such displays.
Coincidentally, as a sign of the times, I noticed in the Press the other day that a local council in Norfolk is attempting to ban nude bathing from its beaches. From a purely aesthetic point of view the Norfolk councillors are almost certainly right; and the Williams Committee is also almost certainly right, particularly in the case of those publications which specialise in photographs of a positively gynaecological character.
However, from the point of view of freedom, it is a very different matter. It would be ironic if, at the same time as the traditionally semi-authoritarian countries of the Mediterranean were adopting amore relaxed attitude in these matters, traditionally liberal Britain started to follow the lead of the Ayatollah's Iran, where, as the Daily Telegraph informed us only this morning, moral squads are roaming the streets tearing down:posters of half-naked women [and preventing] the publishing of sexy pictures in magazinesUndoubtedly it is irritating constantly to see acres—indeed hectares—of naked flesh in a large proportion of the shops one visits, but surely far less irritating than seeing, and all too often stepping in, the heaps of dog excrement which infest the streets of London. Yet the latter, the dog nuisance, is not effectively prevented by 167 law, because I doubt whether there are as many as two prosecutions for every 50,000 cases.
In a free society the normal reaction when one is irritated by something is not surely to try and have it made illegal, but to take it up, in the first instance, with those responsible for the nuisance; and if this is not successful to avoid or boycott them and their businesses. This is precisely what has been happening (in a low key way) over the matter of what we call "indecent displays". The situation has taken an enormous turn for the better over the past 12 months. During the past year your Lordships will almost certainly have noticed that magazines that used to confront one-or one's children-at eye level have been moved up, in nine cases out of ten, to shelves seven feet from the ground, or even to the back of the shop. This has almost certainly come about as a result of the subtle but consistent pressure of public opinion—and because, after all, newsagents have families too.
Of course, there is still plenty of room for improvement but things are going, I suggest, in the right way. However, for the authors of this report it seems that it is not enough to put such magazines partially out of sight—nor will plain covers satisfy them—nor even the concealment of such magazines under the counter, to be produced only upon specific request. Only their total removal from the shop will do—with the consequent probability that many small newsagents and tobacconists will go bankrupt. The committee seem to be under the impression that the invisible aura of evil that emanates from these publications is such that even a copy of Playboy concealed under the counter would be enough to upset and disturb someone coming in to buy a packet of cigarettes. I am bound to say that this ascribes a degree of hypersensitivity to the ordinary man or woman that I simply cannot believe they possess.
Even if I am wrong and the committee are right, or partly right, I can see at least three snags in what they propose. First, the use of an imprecise and subjective word like "reasonable" is surely undesirable in a statute—I know there are precedents but they are not very encouraging. Secondly, and more important, will not a ban encourage the pub- 168 lishers of these magazines to concentrate on the written word? Here I entirely agree with the noble Lord, Lord Wigoder, the right reverend Prelate the Bishop of Durham, and the noble Lord, Lord Tranmire, that one simply cannot agree with the authors of this report in their contention that the written word, unlike photographs and illustrations, can never be offensive.
About five or six years ago I happened to pick up on a train a copy of Mayfair which had been left there by a group of teenagers dressed in school uniform. The photographs in it were pretty standard stuff, fairly innocuous, but there was a story—extremely well written, it must be said, and therefore all the more insidious—which concerned a young woman who was gang raped in The Hague, or Amsterdam, or some Dutch city, by a gang of teenaged youths. This was the most shocking thing I have read for many years; and I cannot but think that this is far more dangerous to young people of both sexes, for different reasons, than any number of nude pin-ups.
Thirdly, I fear that to transfer magazines like Playboy and Penthouse from the high street and corner shops to a smaller number of special shops specifically adapted for the purpose might very well encourage the customers for this soft core stuff to switch to hard core pornography in order to make their journey worthwhile and to get their money's worth. I cannot think that this would be at all desirable. At least the soft core porn occasionally manifests a sense of humour and a certain tongue in cheek attitude, in contrast with the grim obsessiveness of hard core pornography.
My Lords, by all means let us continue twisting the arms of newsagents to persuade them to put these publications even farther away from the gaze and the reach of children (and indeed of adults) than they are at present. By all means let us tax the stuff, if it is so desired, and if an effective method can be found: I can see no libertarian objections to this. Page 228 of this report shows how successfully the pragmatic French tax X films. But let us not ban. The test of a free society is surely whether one is prepared to tolerate the things that annoy one but which other people like, as well as the things to which one has no objection.
§ 5.35 p.m.
§ The Earl of LONGFORD
My Lords, I hope that the noble Lord who has just spoken with such evident conviction, and other noble Lords who have made such significant speeches, will forgive me if I do not comment on what they have said except as I go along. I have rather a lot to say. I have my eye firmly fixed on the clock—at this moment, at any rate. I shall try not to exceed my ration. I must congratulate the noble Lord, Lord Strauss. When I first joined the Labour Party, over 40 years ago now, we looked on him as an advanced radical. I am not sure how these things work out nowadays, but at any rate it has always been well worth listening to him, and we shall want to hear from him very often
I must join also others in thanking the noble Lord, Lord Nugent, for giving us this opportunity. At one time I was thrust into a certain prominence in regard to this unpleasant subject of pornography. When I survey the noble Lord, Lord Nugent, my mind goes back to an occasion many years ago when a number of undergraduates, as we were then, were commiserating with the first Lord Birkenhead, F. E. Smith, on not being elected Chancellor of Oxford. He, with his friendly style, probably after dinner, said, "You must remember my young friends that what Oxford needs at this crisis of our fortunes is a decorous facade. That, unfortunately, I am unable to provide." I feel a decorous facade is what the antipornography struggle requires and I think that the noble Lord, Lord Nugent, provides it ideally. Much more than a facade, he provides—I say this with much feeling—a moral leadership for which many of us in this House are profoundly grateful.
No one who has spent much time investigating pornography can fail to sympathise with the Williams Committee who have worked so hard at their unpleasant task. They have collected and sorted out for our benefit a mass of information not readily available elsewhere, which will always be of the utmost value to anyone—assuming such people exist—who wants to spend his life carrying these investigations further. They have gracefully performed many feats of dialectical gymnastics. For these things at least we can be grateful.
170 No one is less likely than I am to underestimate the complexity of their task, or the difficulty of finding solutions that will satisfy even their authors, let alone achieve a general consensus. But, making all such allowances, I am afraid I personally find the conclusions of the Williams Committee lacking in intellectual coherence at crucial points, and likely to cause serious moral damage if ever adopted. The committee of which I was chairman, and whose report was discussed here in the autumn of 1972, recommended a three-pronged attack on pornography. The worst pornography would be banned altogether. The milder, but still offensive, pornography would be banned from public display; and pornography would be altogether banned additionally if it involved the degradation for gain of those actors or models who were used in its production. The first two categories corresponded roughly to those of the existing law, though with the help of our distinguished legal group we tried to improve on them. The exploitation of the performers was not covered by the existing law at that time. The Child Pornography Act 1978 made a useful start in that direction. We also, on our committee, made proposals intended to strengthen the censorship of films.
The same broad headings can be read into the Williams Report. They set out an elaborate and ingenious machinery for restricting the availability of material likely to prove offensive to reasonable people. They refer also to a kind of material which would need to be banned altogether. But the types of such prohibited material under their plan would be very few. The amount of material altogether banned would be minimal. Leaving aside films for the moment, it would include only the material whose production would involve the exploitation for sexual purposes of a person under 16 or one who had apparently suffered actual physical damage
They make one, proposal as novel as it is unattractive; namely, that no restriction of any kind should be placed on written matter in any circumstances. They produce no cogent reasons for treating written matter isolated in this way as incapable of causing, offence, or serious offence. Indeed, they coyly admit that written works can no doubt be found, to some extent, offensive. The proposal 171 seems to me totally unacceptable, but I must leave it to other speakers to tear it to pieces, and already two eminent speakers have criticised it severely.
On the other hand, the committee, to be fair to them, are rather more restrictive or in my view rather more sensible than I had expected, in regard to the more outrageous films. Under their plans, some films would, I gather, still be banned altogether as unsuitable for public exhibition. For this mercy at least let us be grateful, though unless I misunderstood him, my noble and learned friend Lord Gardiner finds that this is too restrictive whereas I find that it is the one thing at all agreeable, and I think I understood my noble and learned friend correctly.
Although the arguments involved could be developed endlessly, my basic reason for rejecting the conclusions of the Williams Report, so far as one human being can reject a report at all, can be stated in a sentence: The Williams Committee will not acknowledge that pornography does or is likely to do serious moral damage either to individuals or to society as a whole. The Bishop of Durham seemed to be unhappy about their fundamental attitude to that question yet to be quite well satisfied with most of their recommendations, but, as I said, I must not entangle myself with too much debating. My belief is precisely the opposite. Neither the committee nor I can prove the truth of our proposition in the sense of coercing, by sheer weight of empirical evidence, an honest person who disagreed with us so that he had to come round to our point of view. But it is at least worth exploring the probabilities involved and seeing whether they add to up as much certainty as can ever be expected in human affairs.
The committee accept what they call the "harm condition", the opinion that no conduct should be suppressed by law unless it can be shown to harm someone. There are ambiguities lurking in the phrase,unless it can be shown to harm someone".That phrase may well be used to demand a standard of proof which is never made use of when we form our social policies, and that was a point the noble Lord, Lord Nugent of Guildford, was stressing. The committee seem to treat material 172 which offends people as harmful in the sense of hurting their feelings, and I am quite ready to go along with them there. But they dogmatically insist that any additional moral damage or psychological harm on any significant scale does not exist.
In trying to establish their point, they confine the more serious part of their argument to a discussion of the alleged connection between pornography and crime, particularly sex crime, and they claim that such a connection does not exist. They spend many pages—unsuccessfully, in my view—trying to debunk Professor Court and to rehabilitate Dr. Kutchinsky, who I had the pleasure of cross-examining in Copenhagen eight years ago and who I would hardly put on the same level of objectivity as Professor Court, but I will not pursue those personal assessments here. We are still waiting for Dr. Kutchinsky's major book, so long promised; it is 10 years since he came into the open and created such a sensation with what seemed paradoxical views.
Let me concede for the sake of argument that the connection between pornography and the increase in sex crimes or any crimes has been, and is always going to be, very difficult indeed to establish. But so is the connection between any other single factor and crime. As it happens, I did a two-year inquiry into the causes of crime for the Nuffield Foundation and produced a book on that subject in 1958. Since then—not because of our labours, I am sure—crime has never stopped increasing here and in other countries. But neither when I was writing that book nor since has anyone been able to isolate any single factor as indubitably causing crime, either in the individual case or in general. No one, I mean, is able to produce a proof from statistics which would convince anybody who did not agree on other grounds. This does not prevent us as a community from trying to minimise the factors—alcoholism or broken homes, for example, or what you will—which seem to us in the light of all our experience, including any statistical data collected, to increase the risk of crime.
I venture briefly to lay before those who are tempted to sympathise with the Williams position a few thoughts which 173 taken together might well convince the reasonable man that pornography is likely to do moral damage, sometimes in a criminal sense but much more widely and deeply. In the first place, the Williams Committee seem to assume that the reasonable man will be reasonable in being offended by pornography; he is quite right, so to speak, to be offended by it. We may conclude (may we not'?) that he will legitimately be disgusted by it? May we not conclude that if he continues to see it long enough he will be adversely affected by the very element in it which disgusts him? May we not conclude that those who enjoy it initially—of course, this reasonable man may come to enjoy it if he sticks to it, I suppose—will be affected adversely still more than he is? In other words, what is inherently disgusting, and what it is right to consider to be disgusting, is likely to leave most people worse than they were before.
The committee wrestle somewhat disingenuously with the commonsense argument that we are inevitably affected by what we see and read; that we are made better by the good and worse by the bad. Commonsense logic seems preferable here to their tortured acrobatics. The committee seem to agree that we are made better by the good but, to say the least, they are very reluctant to believe that we are made worse by the bad.
Secondly, the committee themselves recognise that young people tinder the age of 18 are what they call vulnerable and that therefore they must be specially protected; that at least should be counted to the committee for righteousness. But they have no factual evidence to support them in the belief that children are damaged by pornography up to the age of 18 but thereafter become suddenly invulnerable. Here, as on other occasions in their report, they are simply combining the conventional libetrarian position, with which no doubt they started, with what they suppose the public will demand. Their dogmatism, in other words, is not based on the kind of facts which they themselves insist on when they are trying to destroy the contentions of their opponents.
I submit that if pornography is capable of damaging young people as a whole up to the age of 18, there is something inherently evil in it to which no age limit 174 can be set. Of course, it can be argued that even if pornography does moral harm to adults, they can look after themselves and children cannot—it may be argued that there is a distinction there—but I am not dealing with that point at the moment; I am dealing with the Williams Committee argument that pornography does not do moral damage.
My third point concerns films in the cinema. No one need enter the cinema. Reasonable men, after one taste of sex films, will be least of all inclined to enter the cinema where they might be offended, yet under the committee' plans some films would be banned altogether. There is surely an underlying assumption here that at least some forms of pornography are dangerous.
Fourthly, and finally, I venture to add that anyone who has gone into this horrible subject at all carefully, as I had to do all too intensively some years ago, has inevitably had much first-hand experience of people, young and old, whose lives have been gravely damaged by pornography; and in one's studies one has come across the cases of many more. If I am asked whether there are not those for whom pornography is actually a beneficial therapy, I can only reply that when we were undertaking our inquiry I went to great lengths to try to meet such people. I publicly asked for people to come and see me. Some did come to see me, but I never met one who did not leave me with the conviction that he would have been better helped in other ways. Quite a few of them were homosexuals who needed friendship far more than any of this kind of dirt. It may be that there are a few doctors who find pornography useful for therapeutic purposes. If that is true—and it may be—pornography should be very carefully restricted and obtainable only on prescription. It is disgraceful that pornographers should be free to make a fortune out of what is admitted to be a dangerous drug.
I repeat my awareness of the immense difficulties which confront anyone who tries to draw up plans which are acceptable to everyone to deal with this insidious evil. Nine years ago, when I opened the first debate in this House on pornography, I admitted that there would always be plenty of room for argument as to whether a particular piece of pornography— 175 Oh! Calcutta! or whatever—had corrupted any substantial number of individuals. But I insisted that no sane person could deny that over a period of years a diet of filth must inevitably corrupt a nation. After many investigations and innumerable discussions of all these issues in small groups and in quite large meetings, I see no reason to alter those words, which certainly brought me a much more favourable postbag from the general public than at any time before or since.
But, my Lords, it is one thing to deliver resounding pronouncements, for one's self-satisfaction perhaps, platitudinous in some eyes, provocative in others; it is another very much harder thing to frame the right legislation, as our committee soon found out, even though it included some of the finest legal brains in this country.
The Williams Committee have not published a Bill to give effect to their philosophy. In the time available this afternoon I will follow their excellent example. In conclusion, I will say only this: I do not think that proposals of the kind made to deal with indecent and offensive display and the proposals to deal with the exploitation of pornographic performers will present overwhelming differences. But when it conies to the question of whether some forms of extreme pornography should or should not be legally sold, then I cannot but see a parting of the ways. Some things are so manifestly evil and perverted that a society, a clean society, should say a firm legal "No" to them. A famous man once said,No one can set a limit to the march of a nation".In my conviction no one can set a limit to the moral decline of a nation which says to its pornographers, "From now on you will have no difficulty in peddling the most extreme material in your portfolios, if you and your customers can get together in a blank-fronted shop or cinema for their excitement and your profit."
My Lords, I hope, and pray, and believe that such a state of degradation will never come about in this country and that the proposals of the Williams Report to this effect will pass into a historical limbo. I implore the Government to look in 176 other directions to make our obscenity laws far more effective than they are at the present time.
§ 5.54 p.m.
The Lord Bishop of LONDON
My Lords, I want to add my voice in the expression of thanks to the noble Lord, Lord Nugent of Guildford, for introducing this Motion, and I, too, have to ask him and the House to accept my apology for being unable to stay for the whole of the debate since I, too, have a very longstanding engagement which requires my presence elsewhere later this evening. I am also glad to extend my felicitations to the noble Lord, Lord Strauss, on making his maiden speech, and I am glad that he is in his place to hear the chorus of praise which has been expressed by every speaker in the debate. I did not agree with all that he said, but I am very glad that he said it—and said it so clearly and so admirably. We shall indeed look forward to his contributions in the future.
I want also to add my thanks to the members of the Williams Committee for their report because, whatever opinion one may have about its contents, one cannot but admire the scope and thoroughness of the work, the excellence of its style, and the clarity with which it has expressed its conclusions. The report is undoubtedly a valuable and stimulating addition to the thinking on a very difficult and complex subject, and the research which is recorded in it will be of great use in further discussions.
The necessity to set up the Williams Committee is itself a sign of the times. Pornography is by no means a phenomenon which is confined to our generation, but since the Second World War its presentation and propagation has spread with an amazing rapidity until, as the Longford Report on Pornography remarked, a new watershed was reached in the summer of 1971 with the presentation of Oh! Calcutta, and, as it said, all kinds of people, not only those with religious standpoint, began to say for the first time that things had gone too far. The permissive society has established itself and no one, neither the law, nor Parliament, nor religious leaders, seems able to control or to abolish it. But there has been, and there is, deep concern on the part of many citizens that the proliferation 177 of pornography in its various manifestations is an evil and harmful thing, and that society must find means to contain it and to reduce as far as possible the baleful effects which it has on the security and the happiness of the citizens of our country.
So the Williams Committee is one outcome of this public concern, and whatever views we may take of its conclusions, we ought in fairness to remind ourselves of its terms of reference. It was set up:to review the laws concerning obscenity, indecency and violence in publications, displays and entertainments in England and Wales, except in the field of broadcasting, and to review the arrangements for film censorship in England and Wales; and to make recommendations".The committee's remit was therefore to advise about the control by law or film censorship of the phenomenon of pornography, and we must not therefore be too critical if we think that it should have devoted more of its attention to the underlying moral principles involved in the very existence of pornography.
Thus from the outset the committee was concerned about the extent to which it is justifiable for the State to forbid individuals to do what they want to do even though others may dislike their practices. It came to the conclusion that the arguments in favour of freedom of expression outweigh those of censorship, and in general it agreed with the view expressed by the Board of Social Responsibility for the Church of England that it is inappropriate for the law to interfere with the voluntary activities of adults, unless such conduct causes harm to others. I should expect that most noble Lords would accept this guideline as correct. So, also, I expect noble Lords agree with the view of the committee that the terms "obscene", "indecent", "deprave", and "corrupt" have outlived their usefulness and should be abandoned. They are difficult to define and so, it appears, they have caused considerable problems in the courts.
The test of offensiveness seems to be a defensible one, but one must be more cautious about the term "offensive to reasonable people", since this involves a value judgment as wide as that required by the words "obscene" and "indecent". I may regard myself as a reasonable person, but I am quite sure that there are 178 many who take a contrary view. The report tells us that the law already uses the concept of the reasonable person in regard to matters of responsibility, negligence and so on. It would be interesting to hear from those who are learned in the law whether they think that this concept is workable, and whether they consider that it is an applicable criterion in deciding what is or is not morally offensive. I confess that I have my doubts about the ability to make such a definition.
In my view, the main controversy centres around the view of the committee as to what is or is not harmful. As the leading article in The Times of 29th November last year observed:There is, however, one very noticeable omission from the schemewhich is proposed by the report.It does not purport to guard adult persons or society in general from harm (except a restricted protection of actors or models for pornographic productions from actual physical harm). This is because in the view held by the authors throughout most of their report pornography, including the pornography of violence, does not give rise to harm either of a type or of a degree which requires that the law should intervene".In the chapter on "Harms", the committee marshals a formidable mass of evidence, mainly from experts, to suggest that the correlation between pornographic material and anti-social behaviour is minimal. In an area such as this, I am doubtful whether the best guidance is given by experts and by graphs. I think that common sense and "gut reaction" have a part to play.
For myself, I have no doubt whatever that the proliferation of pornographic material and displays must have, and does have, a debilitating and souring effect upon society—and I think that history is on our side. I think that the history of Germany between the wars, for instance, is a clear indication of the way in which the falling away from moral standards affected the whole standard and judgment of a nation. I am quite sure that this unpleasant stuff has an effect on the individuals who indulge in it. The noble Earl, Lord Longford, has spoken of individual cases that he has known, and I, like so many noble Lords, have from time to time in the course of my work had to read some of this pornographic material. I know from personal experience that it leaves a nasty taste in the mouth, and that it takes a very long time to eradicate it; and what 179 goes for the individual goes also for the society of which the individuals are members. Though it cannot be measured, there can in my view be no doubt about the corrupting effect which access to pornographic material has on persons and on society.
In other areas Gresham's law is at work, and it can to some extent be quantified. Let me give an illustration. One of the most potentially delightful parts of this City of London is the area of Soho. There is living there a respectable and hardworking community. Into it has moved in recent years the vice trade, of which the pornography business is an important constituent. Today, according to recent figures available to me, 165 buildings in the area have been taken over by the pedlars of vice, and they house some 220 separate businesses, mostly pornographic bookshops and cinemas. As leases have come to an end, old-established shops which were of value to the local community, such as grocers and chemists, have been driven out by the increased rents and have been replaced by the traders in vice. Buildings once used for socially acceptable purposes have been taken over by establishments which supply the pornographic business, and the effect on the local society is undoubtedly very damaging.
I leave it to others in this debate to comment on the safeguards which the committee suggests in the sale of pornographic material. I confess that I am doubtful about the likely effectiveness of its sale in special places with warning notices, blank exteriors and lack of display. It seems to me that there would be nothing to prevent a qualified person buying material of a highly objectionable nature and immediately handing it on to an unqualified person outside.
There are, however, two matters in the report upon which I wish to comment. First—the point which has been mentioned by so many noble Lords—that the committee proposes that there shall be no restriction on the written word. In paragraph 7.22, in summing up the arguments, the report says:While written works can no doubt be found to some extent offensive, we believe that these various considerations provide a very strong case for withholding the possibility of restriction (let alone of suppression) from the written word, and we shall propose that, with respect to the area of 180 the law we have been appointed to review, no publication shall be liable to either suppression or restriction in virtue of matter that it contains which consists solely of the written word".Later on, this is again expressed in paragraph 9.36, and again in paragraph 11.8, and, in the summary of recommendations, Nos. 6 and 7. This can only mean that, so long as it is not accompanied by any illustrative material such as covers or in the text any written material, however pornographic, violent or cruel, would be freely available to everyone of any age anywhere where they want to buy it.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, may I intervene just to make the position clear? This has been said by several noble Lords, and it is a very important point. My understanding is that the right reverend Prelate has just described the present situation exactly. That is the situation today. The Linda Lovelace case has meant that no public prosecutor will prosecute anything of this kind, I understand. I think it is important to know that the committee were not recommending a change, but were recommending no change. I do not say it is right or wrong, but that is the position.
§ Lord NUGENT of GUILDFORD
My Lords, may I intervene in this little discussion? While the noble Lord is obviously right de facto, he is not right de jure. The law is this, that written pornography, if it reaches the level that the court would find obscene within the meaning of the Act, is illegal.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, of course that is the case, but so long as there cannot be a prosecution the situation is the same.
The Lord Bishop of LONDON
My Lords, I thank the noble Lord for his intervention. Whether or not he is right, I am simply making the point that the Williams Committee goes out of its way time and time again to say that all printed written material shall be completely free of any kind of restriction, and I find that an astonishing recommendation. It is based on the thesis that the harm done solely by reading is minimal.
I think most noble Lords would agree that the immediate effect of visual images 181 is powerful and lasting. Were it not so, book illustrators would be out of a job. Most of us, for instance, have formed our image of Alice and her companions from Tenniel's drawings; but, in my view, whatever the effect of the visual image, it is superficial, whereas the effect of the written image is profound. Surely some of the deepest and most lasting marks upon human behaviour have been made, for good or ill, by the written word. The holy books of religion, Shakespeare, poetry, Das Kapital, Mein Kampf, have all been offered to the public without illustration and often abominably printed, but they have left an imprint on mankind far beyond any of the visual images. For from the written word the mind forms its own images, and these become engrained in a more possessive way than does the visual image. This is all the more menacing for those who already possess dangerous tendencies. Those, for instance, who have a leaning towards sadism, are attracted to sadistic literature and feed their aberration on the material they read.
As The Times leader that I have already quoted points out, the committee reveals the weakness of its argument in the volte face it displays in paragraph 12.10 over the case of films. They observeWe found it extremely disturbing that highly explicit depictions of mutilation, savagery, menace and humiliation should be presented for the entertainment of the audience in a way that appeared to emphasise the pleasures of sadism".Consequently it is recommended in the report that the film should be subjected to a censorship which The Times describes as exceeding in severity anything at present known to the laws of England. Those of us who believe that the written word can have an even deeper and more lasting effect on human behaviour than the visual image have a right to ask: If the film, why not the book or the magazine? If it is undesirable to feast the eye on such material in the film, why not the mind on the book?
There is another aspect of the committee's proposals, especially regarding films, which calls for some comment. If carried into effect, the proposals would almost completely remove the right of individual citizens to take initiative when others fail to do so. In paragraphs 9.50 and 11.16, it is suggested that the right of individuals to institute proceedings for 182 criminal offences should be removed and that such power should rest solely with the police or the Director of Public Prosecutions. Again, the film examining board would be the sole authority in deciding what films could or could not be shown throughout the country. The local authority would license the cinema but, once having done so, the local authority representing the people living in the locality would have no say in the films which were to be shown in the area where they live.
Thirdly, while an appeal from the decision of the film examiners could be made, it has to be made to the film examining board; that is to say, the people who have themselves appointed the examiners. Moreover, if the appeal is made by a person other than the applicant, the examining board need not even see the film before making their decision. This package is a passport to bureaucracy since all the powers for licensing films, for appeals, for prosecutions, will be centred in a small body in London. I hope that the Government will reject any attempt to remove the rights of individuals, especially in this sensitive area of public life where opinions are strongly held, and that the voice of the individual will be allowed to be heard closely.
My Lords, I began my speech with the reminder that we must be fair to the committee in remembering their terms of reference. I hope that I have observed that condition myself. I fully recognise that the report acknowledges that pornography is intrinsically offensive; that it is destructive of human happiness in the individual and in society; that it is negative; and that if there are those who want to wallow in it, they must do so without offence to others. However, I do not think that the committee would have been going beyond its brief if it had pointed out that, although the law can contain and limit these evil things, it cannot remove the root causes. It could have pointed out that because indulgence in pornography is sterile and joyless, it is bound to lead to an unhappy society. It could have reminded us that the only solution to the problems it is examining is to be found in a rediscovery of sounder social principles, of true family life and of sacrificial self-discipline. For St. Paul got things right when in commending men to seek peace, he told them that the 183 way to do it was to think on things true, honest, pure and of good report.
§ 6.15 p.m.
§ The Earl of LAUDERDALE
My Lords, like others who have spoken, I must join in congratulating the noble Lord, Lord Strauss, on his maiden speech which was distinguished in many respects and not least in the respect that it was scarcely uncontroversial. But he will always be welcome, as he knows; and any former colleague of his in the House of Commons, as I was for a while, will rejoice in his presence. Following the right reverend Prelate the Bishop of London, I ask myself whether there is anything else to be said. The only case for continuing the debate and for mounting speech after speech saying very much the same things on the one side of the argument is to impress the Government, which have to make up their minds, that there is a strong body of opinion which is affronted by certain aspects of this report.
I am sorry that I cannot join in the general adulation that has been offered to the hardworking, distinguished and, no doubt, absolutely intellectually honest members of the committee for their work. I think that the adulation should first be poured upon the noble Earl, Lord Longford, who, alone in Parliament, nine years ago had the courage to raise this matter in all its stark beastliness and who has been lampooned and ridiculed ever since in the popular Press and elsewhere for his pains. If there is one man who should be thanked, I believe it is the noble Earl, Lord Longford; and I look upon this report as very much a sort of Civil Service, Whitehall attempt to provide what was thought to be a sober antidote to a man of religion.
We all agree that this is a brilliant piece of work; we all agree that it amasses an enormous amount of research; we all agree that the presentation is superb. But it has emerged from many speeches that there are basic contradictions. The most obvious one is the attitude opposing censorship of print but approving it of film; saying that pornography is acceptable in print, and does no harm there, but, on the other hand, that it can do great harm on film.
184 Perhaps the deepest error of the committee is in ignoring the nature of man. After what the right reverend Prelate has said, I think it worthwhile reminding the House of some words that the Pope used, I think, in Poland. He said that to understand man you have Rot to learn about Christ. This is not an occasion simply for religious confession except that it is religious belief that impels some of us to take a point of view. What this committee does is to ignore the nature of man, who is an amphibious animal, dwelling partly in the world of concrete facts and partly in the world of timeless values. Ignoring that, the report is infected throughout by an endeavour to evade value judgments, let alone moral commitments.
This is the fundamental issue: avoiding value judgments of right or wrong, the committee seek to resolve the matter in terms of harm. They try to judge harm by causal quantifiable and statistical evidence and, resorting to such evidence, they then come up with the conclusion that there is no scientific evidence to prove—to prove what? To prove that influences which debase sensibility do lead to occasional personal depravity which pollutes character and ends up in consequential corruption of family relationships. They say, first, that you cannot prove it statistically and then say that, because you cannot, it does not matter.
On the other hand, there are sleights of hand which I am calling hypercritical, intended to hide but in fact revealing both that these value judgments cannot be altogether avoided and that scientific evidence can never be complete. Take Chapter 6, for example. Listen to the subtle, seductive ambiguities. Paragraph 6.8, page 63, line 3 refers to no "very great harm". Is there harm, or is there not harm? It is like when newspaper correspondents on the Pakistan frontier report "heavy" fighting. Can anyone tell me what is "heavy" fighting? They report "many" casualties. What are "many" casualties? These are deliberate propaganda ambiguities. As an old newspaperman, I know the tricks. This report says no "very great harm". It does not mean a thing. Is there no harm or is there some harm?
Paragraph 6.16 of the same chapter refers to: no "significant role". What is 185 "significant"? Does it play a role? In the same paragraph it says:does not appear to be any strong evidence".What is meant by"appear "? Is there evidence? One can say that the evidence is weak, but to say that there does not appear to be strong evidence is a literary sleight of hand worthy of the propagandist.
We are told that Brody has… not been able unambiguously to offer any firm assurance ".Was he able, unambiguously, to offer a non-firm assurance? How ambiguous was he? Was his assurance 100 per cent. ambiguous or was it 60 per cent? We are not told. All we are told—and it is a literary sleight of hand worthy of the propagandist—is that he has not been able unambiguously to offer any firm assurance. This is the hypocritical, propagandist dodge where the picture is twisted by attaching adverbs and then destroyed as being inaccurate.
By such tricks of speech the moral criterion"deprave and corrupt"is not so much rejected as eroded and discredited. Inevitably then we come to the committee's preference for what is reasonable to the ordinary man. That is really coming back to public taste—that familiar resort of the Home Office trying to navigate the choppy seas of a very plural society. But as all taste is debased by repeated exposure to the inferior, the level of trash declines to the point when—and I quote the Jewish evidence to the committee:Nothing in past history compares "—and the Jews have a long history—with the amount of open sensuality, lascivious and lewd publication and 'entertainment' that are available in today's world".That is what the Union of Liberal and Jewish Progressive Synagogues put forward in their evidence.
Worse still, there are commercial interests which create the demand for trash and then proceed to supply it. So I was struck when the noble Lord, Lord Monson, brought up the hoary old argument:"Forbid it "—and this comes in paragraph 6.8—" and you will drive it underground ". Then, should we not forbid crime for fear that we shall drive it underground? It is underground exhypothesi. It is the silliest argument brought up by the humanists, this claim 186 that there is no scientific, statistical, quantifiable, causal evidence. It is sillier still to talk about driving pornography underground by banning it—when financial interests profit from its open circulation.
Here is a brilliant exercise—but recalling to mind that admirable quotation about fools, which my noble and learned friend Lord Rawlinson of Ewell picked up from Lord Melbourne, I cannot help feeling that these very learned members of the committee behaved in a fashion recalling the right reverend Prelate's point: often it is better to have gut reaction and common sense than the evidence of experts—or, as the old adage put it:A nose that can see is worth two that can sniff".My Lords, I give the committee alpha double plus for casuistry but delta double minus for contradictions and conclusion. Here is a snide retort intended to tilt the balance of opinion back again, in the name of reason as against emotion and religion, from the influence which was articulated and crystallised by the noble Earl, Lord Longford, to whom we can never be sufficiently grateful. This report is compiled and presented with such conjuring sleights of hand as to suggest that the real aim was to make the world safe for hypocrisy.
§ 6.26 p.m.
§ Lord ANNAN
My Lords, after that formidable speech I wonder if I could simply congratulate again the noble Lord, Lord Strauss, on his speech, and say what pleasure it gave me—particularly personal pleasure—because I had the honour of moving the Motion in your Lordships' House to set up that Select Committee on the abolition of the censorship of the theatre to which he referred in his speech. Yet at the same time I was also the chairman of a committee which reported on the future of broadcasting in which (in Chapter 16) we strongly advocated censorship by the authorities of all sorts of material concerned with violence, sex and bad language, and I want to try to introduce a note—which may be appropriate from these Benches—that all in these matters is not black or white. I suggest that one neither has to come down on a stand about this report that it is a report which is hypocritical, casuistical and 187 deplorable in its attempts to gull public opinion as to a danger which is facing us, nor that, as I thought I heard the noble and learned Lord, Lord Gardiner, say, it did not go far enough. I believe that in these matters judgment is absolutely at the essence of the matter. Of course we will never all agree precisely where one evil ends and another good begins; but we must do our best to steer our way through these waters, and that is what this report is about.
I personally give a welcome to the report. It is, in its way, a wise one. Again, it is a pleasure to me, having once been Provost of King's College Cambridge, that my successor, Professor Williams, as Provost now, should have been the chairman of this committee. It is a report which is concerned with trying to hold balances. It is a report which is saying that for many reasons we should abandon a concept of censorship here, and for many other reasons should introduce censorship there. It is a report which deliberately tries to distinguish between different forms of publication. That certainly was one of the points which in my work on the committee on the future of broadcasting I thought it most essential to bring forward to the public; namely, that television is a particularly dangerous and difficult medium when one comes to discuss and judge what should be shown on it, and that therefore one should have a far greater care as to what is shown on television than what is, for example, read in the home. That is something which is important to emphasise about this report. It is judging between different media of expression. On the whole, it judges well.
I must here interpolate a philosophical point because of course the chairman of the report is a distinguished moral philosopher. I was very surprised indeed to hear the noble Earl say that there was no moral content in the report—a report from the man who has just resigned from the Knightbridge Chair of Moral Philosophy at Cambridge. However——
§ The Earl of LAUDERDALE
My Lords, may I intervene for one moment? Perhaps I did not express myself very clearly. I did not say there was no moral content—I gave it delta double minus for content—but what I said was that the committee did not really tackle the moral issue, or words to that effect; and I stand by that.
§ Lord ANNAN
My Lords, of course I accept the noble Earl's explanation; but I should like to return to my point here. The Williams Committee was trying to judge a situation in which this country has quite clearly moved in recent years very far from the standards which were acceptable a hundred years ago. We may regret it and we may express views about it, but the committee had to deal with a particular situation of that kind.
I would draw attention to this philosophical point: it is not a report on utilitarian ethics. It does not argue that the onus is always on those who propose censorship; it does not argue that you have to prove beyond all reasonable doubt that in every case someone is being directly and palpably affected by obscene material. In fact, contrary to what has been stated by some noble Lords, this committee accepts the existence of evil in this world and of evil resulting from pornography.
Here I do not quite follow in every respect the noble Lord, Lord Strauss, when he, I think, threw doubt on the idea that pornographic material causes evil. Here—and this is, again, an example of the way in which I find myself on the Cross-Benches—I feel very much in agreement with the noble Earl, Lord Longford, and in disagreement with the committee. I think there are too many cases which can be cited by people who have been harmed by written pornography, and by pornography of all kinds, for that matter. However, I think the Williams Committee were up against the familiar difficulty that, even if you accept that, which I quite agree they did not do to the same extent as I would, you are left with the question, what should the law be on these matters and how should we approach the problem?
It is quite true that people are affected by the written word. A hundred years ago, when the Bible used to be read far more than it is today, poor, crazed individuals would take an axe to some neighbour or to their wives to fulfil the prophecies in the Old Testament: yet no sane, reasonable man, if I may say so, would use that as an argument for sneering at the Bible or saying that its reading should be restricted. Of course, there are cases in which people have committed crimes under the influence of pornographic reading. The other thing which always comes to mind is: what were the other 189 causes which also went to the creating of this situation and to the committing of that crime? That is what I think the Williams Committee were trying to cope with.
If I may go back into my own reminiscences about appearing at trials, I appeared as a witness for the defence when the noble and learned Lord, Lord Gardiner, was leading for the defence in the trial of Lady Chatterley. Of course, the book that was on trial that day was not Lady Chatterley's Lover: it was Mill's Essay on Liberty. On that occasion I had very good fortune, in that I was not cross-examined, because by that time the list of witnesses was so long. We had a verdict on that case in which the new law was tested for the first time, and literary merit was allowed. I am bound to have to say that, in the examination and cross-examination of the witnesses, statements were made by highly sincere people which I cannot but think that, on reflection, they must have regretted—because, in order to try to prove that the work had literary merit, very odd things indeed were said by witnesses. I will not go further and quote, because the time is short and we want to get on with the debate. However, the system of trying to prove literary merit and therefore defending a book such as Lady Chatterley's Lover—which, in my opinion, is not one of the best works of a man who was undoubtedly one of the greatest authors and novelists of the first half of this century—is not really, in our adversary form of law, acceptable. The curious result of that trial was the reaction against the defence witnesses by people who said: "People who can so convolute their arguments and twist their minds to produce reasons for defending what Lawrence wrote are really doing no service to literature."
My next experience, having appeared as a witness in that case, was that I was written to by solicitors who were preparing the defence for Fanny Hill. They asked: would I appear as a witness? I said that I would indeed, but that I must warn the defending solicitors that if I did appear in the witness box and was asked whether I thought the book was pornographic, I should say that it was pornographic and that, although written in a charming 18th-century vernacular, its intention was to 190 inflame desire (which certainly is one criterion that I think is inherent in pornography). I heard no more from the solicitors.
I have some sympathy with the view expressed by the noble Lord, Lord Tranmire, when he said that literary merit was a mistaken introduction into our law concerning obscenity; but I do not believe you can go back to the pre-1960 position. I think that is the problem that the Williams Committee were wrestling with. Having in the whole of their report admitted—or rather, not admitted, because that suggests that they did so against their will, but having quite clearly stated—that pornography is an evil, they then had to decide what can be done about it. This is the matter, the whole problem, with which the committee's report is really concerned.
I think that the report is extraordinarily wise when it comes to deal with films, with performances in public and with the mail and the use of the mail. In each of those cases the committee unhesitatingly came to the view that offences can be committed and that laws should be made which make it perfectly clear what the offence is: in other words, that there should be censorship of films, there should be prohibition of material passing through the mails and there should be certain standards set in public performance; and also that certain things should not be permitted in public performance—that is, censored in public performance.
These views are made perfectly clear in the report, and that is why I think it is a balanced report and why I myself think there is really no problem about"the reasonable man"—no more than there is a problem about the man in the Clapham omnibus. These are legal phrases which lawyers have long ago learned to interpret. Clearly, there are slight changes with every generation in what a reasonable man will or will not accept. That is why I thought that the intervention of the noble Lord, Lord Donaldson, was of importance, when he reminded us that the possible reason why the Williams Committee reach the conclusion they do about the written word is simply that, today, it is very difficult to administer a law which tries to make distinctions of the kind that many people would like to see. 191 So those are the reasons why I welcome the report.
Since others wish to speak, I would make just one last point. Censorship is not, in itself, an evil and is, and should be, regarded as an acceptable bulwark for freedom. One of the most famous maxims of La Rochefoucauld is that,Hypocrisy is the homage which vice renders to virtue".That is, in fact, what we have done about prostitution. Many people will remember the debates which took place after the Wolfenden Report, and the way in which many high-minded liberals said how disgraceful it was that the Wolfenden Report was intending to sweep prostitution under the carpet. May I say that I think it is a very good place for prostitution. I think this is so about a great deal of pornography, and that is what the Williams Committee is trying to do. It is trying to avoid giving offence. That was at the heart of the arguments of the Committee on the Future of Broadcasting, when it argued about the deplorable effect of giving unnecessary offence in television programmes.
I therefore regard the report as, in some way, an advance on what has been done up to date in our discussion of this matter. It does, I think, give the opportunity of framing legislation. I can well imagine that the Government will say,"Let us leave this alone for some time, until we see which way opinion moves ", and it may well shift against the conclusions of the Williams Report. But if it does, there will be very considerable difficulty in framing legislation dealing with the written word, in view of what has happened in recent years.
May I just conclude by giving my apologies to both the noble Lord, Lord Belstead, and the noble Lord, Lord Nugent, for being unable to stay until the end of the debate. I am extremely sorry, but I have to go back to my university for a function.
§ 6.43 p.m.
§ Lord MACLEOD of FUINARY
My Lords, in an opening sentence as sincere as it is short, I also should like to add my congratulations to the noble Lord, Lord Strauss, on his maiden speech. As 192 regards the subject before us, in the light of the number of speakers I do not intend to delay your Lordships long. Agreeing with much that has been said, which I shall not repeat, I want to confine myself to one issue only, and that is a very central one.
There is one overriding factor, and that is the threat to our whole constitution as a country if the main thesis of this report is accepted and passed by an Act inaugurated in this House or in some other place. It requires no argument to claim that our world is one world, and known to be, and that that one world is in decline. Those of your Lordships who recall the collapse of the Roman Empire will recall the two main factors causing its collapse. One was its permissiveness and the other was what we would now call inflation. So far as the latter is concerned, we can leave out inflation for the purposes of this debate, except in a solitary sentence to notice that in the morning papers Hong Kong now decides for our united world what is the price of gold. Enough said about what is happening to inflation!
Let us confine ourselves to permissiveness. Would anyone deny that this is a worldwide mark of our time in all countries? How many people are aware that in Roman Catholic Italy in the last recorded year there were 1 million abortions? But we are not taking Italy or the Roman Catholic Church by themselves. What about the rise of permissiveness in our now united world? Secondly, how many people are aware that in the United States of America in the last recorded year there were more abortions than there were natural births? How many people are aware that in the city of Philadelphia there were more illegitimate births than there were births in Holy Wedlock? I do not have comparable figures for the United Kingdom, but who would deny that permissiveness, as a growing disaster, is in our country in the same degree? Or if you think that that is a cover-up for our country, let me give your Lordships one almost parallel example.
In Scotland, our Church has recently started a newspaper for youth, called Yes. It has a readership of some 10,000 young people and they recently had a Gallup poll. One thousand of them, all Church young people, were asked various questions 193 about different issues such as pornography, but also about sex before marriage. It may interest your Lordships to know that of 1,000 Church young people, over 40 per cent. said that provided there was affection there was nothing wrong with sex before marriage. In Italy, in the USA, in Britain, in our united world, what is the sum total of irresponsible lust by men revealed by the figures that I have told your Lordships of?—millions and millions of cases. And what is revealed by the heartbreak for women, for whom the day of a birth ought to be one of the great moments of their lives? We are revealing a terrifying situation. By this permissiveness, Western civilisation is threatened in its whole culture by near bankruptcy as of now.
It is against that kind of background in this, our now situation, that we are seriously being asked to broaden the facilities for obscenity and to extend the spread of pornography. Against that background let me repeat—and this I end on—what seems to me to be the threat to our whole constitution as a Christian nation. If ever the main conclusions of this report reach the statute book, let us be logical. Let us be honest. Let us be done with any idea of a Christian basis for our culture. Let us be done with opening every meeting of your Lordships' House with a religious occasion, a shibboleth of what we really believe, by passing such legislation as we are referring to. Such is the Christian situation. Let us be done with anything so old-fashioned as a religious coronation. No, my Lords, if we are to go into this kind of statement and this kind of legislation, let us be honest. Let us be legally secular. Let us welcome pornography. Why not, my Lords? The thing is open now. Let us give free way to vice, because of the complete absence of any acceptance of a religious basis for our nation.
§ 6.49 p.m.
§ Baroness FAITHFULL
My Lords, with other noble Lords I thank the noble Lord, Lord Nugent, for initiating this debate. It is with some trepidation that I say to the noble Lord, Lord Strauss, following his maiden speech that I have been a Member of Westminster for only four years. I therefore pay tribute to him as having been Father of the other House, but I am in trepidation as I am 194 going to disagree with what he said. However, in other areas, I hope that I may learn from him following his maiden speech.
When looking at the distinguished members of the Williams Committee, chaired by a distinguished academic, one expected a report of quality and, like other noble Lords, one was not disappointed. Indeed, one was fascinated by the literary excellence and the hard and painstaking work involved. One also appreciated that there was unanimity on this committee. It is therefore with some diffidence that I take issue with some of the committee's recommendations.
I will confine myself to three areas of discussion: first, that the printed word should be neither restricted nor prohibited; secondly, Recommendation 8 concerning the display, sale, hire of material in premises having a separate access; and, thirdly, the report as related to the wellbeing of children. These three areas are, of course, interrelated.
The Williams Committee Report is an academic exercise meriting, in my view, a double first degree; yet this highly academic exercise, with expert witnesses quoted in the report is, in my view, at variance with the feelings—I say"feelings"advisedly—and the thinking of ordinary people. I count myself among the ordinary people. I feel that the ordinary people were not heard on this committee. Indeed, the report states:We could agree that it would be interesting and important to know more about public opinion on the matter ".The report gives reasons why the Opinion Research Centre was not asked to do a survey. Therefore I speak from a practical point of view—from the point of view of the ordinary person: if you think of Lord Rawlinson, thinking of the fools or, if you think of Lord Gardiner, thinking of the women who have a practical, realistic approach. The report states that few people suppose the mere fact that a lot of people dislike something is in itself a good enough reason for supressing it. But in a democracy the views and feelings of ordinary people do matter.
In my experience, ordinary men and women do not want their families to read literature which is an offence to the reasonable man. Professor Williams has 195 quoted the philosopher John Stuart Mill, the psychiatrist Dr. Kutchinsky and Maurice Yaff é, but throughout the report he has not argued for or against those with religious beliefs which form a positive way of life for many. And those many should not be discounted. I refer not only to those of the Christian faith. I refer also to the ethnic groups. I have been in touch with the ethnic groups. I understand that the Islamic, the Asian, the Greek Cypriot and many other ethnic groups in our society, do not approve. It is outside the terms of reference of their religion to read pornographic literature or to see pornographic films or pictures. As we live in a multi-racial society, I believe that we should take note of all religions.
In the Guardian of 3rd January 1980 the black churches are said to be acknowledged as one of the country's most spiritual and creative groups. Perhaps we should take note of what they have to say. The case of the religious groups, including the ethnic groups, for or against the sixth recommendation concerning the printed word, has not, I submit, been argued in the report. Of the effect of the unrestricted printed word concerning offensive literature, may I quote Sir Basil Blackwell of Oxford, one of the greatest booksellers of our time. When giving evidence concerning the publication of the book Last Exit to Brooklyn he told the court:I do not expect in the time left to me to have the memory of this book erased from my mind; my mind was defiled and remains so ".I need hardly say that in his case there were no causal influences, but he maintains that, having read this book, his personality has been diminished. I would suggest that this is so in the case of many ordinary people in our country.
On the subject of Recommendation 8 concerning sales of material from specified shops, first, how can a shop know who is over 18 and who is under 18 years of age? I tried it out the other day. I dressed up; I made up. I regret to say that people thought I was 16! It is quite easy to do that with cosmetics. It is equally easy to do it the other way. Secondly, once the pornographic matter leaves the shop I am absolutely certain that it will be bought, that it will be exchanged and that 196 it will be left about. There is no protection for people who do not want to read pornographic literature or for families who do not want their adolescents to read it. Therefore, I find that this recommendation is extremely difficult.
Finally, I come to the position of children and young persons. I am not sure whether I detect in the report a less than enthusiastic attitude to the Protection of Children Act 1978. It is stated in the report:No evidence was put to us that child pornography was a growing problem ".The law was passed in July 1978. In 1978 there were six referrals to the Director of Public Prosecutions by the police, and one successful prosecution. In 1979 there were 20 referrals by the police to the Director of Public Prosecutions. The outcome of these is not, of course, yet known.
I submit that, well written and argued as this report is, there are gaps, a few of which I have tried to cover. Therefore, in my view the case has not been made for Recommendation 6 concerning the printed word.
§ 6.58 p.m.
§ Lord SIMON of GLAISDALE
My Lords, first may I join in the gratitude which your Lordships have expressed to the noble Lord, Lord Nugent of Guildford, for giving us an opportunity to discuss this important report. Secondly, may I join in the tributes which have been paid to the Williams Report. Whether one agrees with it generally or disagrees with it totally or partially, I venture to agree with the noble Lord, Lord Annan, that it is a most remarkable document, written with great elegance. It could well become a literary classic. Its line of argument starts with the barely argued, but referred to, preference for the position of John Stuart Mill and Professor Hart as against Fitzjames Stephen and Lord Devlin. If the committee had adopted the position of the latter two and argued the case with equal cogency, they would certainly have arrived at very different conclusions. But the very clarity and general cogency of the argument does highlight, as this debate has shown, where the argument has lacunae, where it has jumps, where it is slightly smudged. For that, again I think we ought to be grateful.
197 My own recollection and experience of these matters certainly does not go back as far as that of the noble Lord, Lord Strauss, whose maiden speech we so greatly enjoyed. But I was the Home Office representative on the Select Committee of the noble Lord, Lord Tranmire, and I shall not cover the same ground, except to say that even after all the experience we have had I do not myself think that his casting vote was miscast.
I was counsel in the Ladies Directory case when it came before your Lordships' House and I think it would be an impertinence for me to discuss that case. I was a Member of your Lordships' Appellate Committee which considered the appeal in Knuller; and perhaps I may refer to that case, because I was a party to what was quite clearly a narrowing of the ambit of the offence of conspiracy to corrupt public morals. But on the other hand I was quite clear that there was a common law offence of outraging public decency and a common law offence of conspiracy to outrage public decency and I expressly said that I considered it to be a legitimate demand of the ordinary reasonable citizen that he should be able to go out in public without his sense of decency being outraged.
Therefore, I find the general approach of the Williams Committee quite acceptable. I shall have occasion to say where I think there are matters which one can criticise. The other thing that predisposes me very much to the approach of the Williams Committee was mentioned by the noble Lord, Lord Annan, and that is the analogy with the Street Offences Act, which I think has achieved with remarkable success what it set out to do as recommended by the Wolfenden Committee.
The Williams Committee recommended a rather stricter test than I ventured to recommend, namely outraged public decency. They recommended in Recommendation 7 that the offence should be what is offensive to reasonable people by reason of the various matters set out; and the question has been raised before your Lordships whether that is a workable test. Your Lordships have had the benefit of hearing great lawyers today. I can only give my personal testimony that it seems to me in every way to be a perfectly 198 workable test in the courts. It is the sort of matter that jurors have to decide, and do successfully decide, day in and day out.
Having said so much I now venture to criticise certain matters in the report. The question arises whether, if those criticisms are valid, they can be rectified and, if they cannot be, whether the whole Williams structure can stand. The first and most serious one in my view, in common with many of your Lordships, is the exclusion of written material. It seems to me quite astonishing that the committee did not consider that matter in the context that was raised by the noble Lord, Lord Wigoder—namely, the circulation of written material among young persons. Oddly enough, the example that occurred to me was mentioned by the noble Lord—namely, one of the most notorious works of sadistic pornography,The Story of O. What one has to ask oneself is whether it is really acceptable that mail order firms should be able with impunity to describe such a work of sadistic pornography, to canvass young people to buy it, to sell it to them with freedom and impunity: yet that question is not faced at all, so far as I can see, by the Williams Committee. I agree with the way it was put by the right reverend Prelate the Bishop of London and I shall not pursue the matter further. But it seems to me to be a quite unacceptable exclusion and indeed one that is insulting to the power of literature to arouse the imagination.
My second very serious criticism is of the restriction of prosecutions to the Director of Public Prosecutions. The noble and learned Lord, Lord Gardiner, said of the ordinary private prosecutor,His judgment is not as good as the Director of Public Prosecutions.What is that except the argument that the gentleman in Whitehall knows best and that therefore it must be left to him? After all, those of us who stand, as we all claim to stand, for freedom of expression—the maximum possible freedom of expression, though different ones of us would draw the line at different places—do not do so because we expect every use of the freedom of expression to be wisely exercised. We do not expect the words of a Solon or of a Plato; what we want is for the individual to have this fundamental right to speak his mind, believing 199 in the traditional arguments that that conduces to the public good and to private happiness.
I would say equally that the right of private prosecution is a most important private right of the individual Englishman. It has already been very considerably eroded. A little more than a year ago I asked what restrictions there were on private prosecutions and the Director of Public Prosecutions then produced The Prosecution of Offences Regulation 1978, which is in your Lordships' Library. I defy any Member of your Lordships' House, with all your mastery of material, to marshal any sense into the farrago and hotchpotch of offences which one finds there restricted. Are we really going to add to that, as well as derogate from this traditional right of the private prosecutor? Then again the Director is at the moment under considerable criticism for certain decisions which he has made. I dare say that many people who would like in this field to restrict private prosecutions regret very much that the Southern Rhodesia Act did not allow private prosecutions for sanctions-busting.
Then there is the criticism about the Kelly case, about which questions have been asked in another place. Is this really the moment, against this sort of background, to deny the private individual the right to prosecute? The mere fact that feelings are strong seems to me to be a very cogent reason for leaving that right untouched in this field. Perhaps I may add one word more on that and it is this: that in the form in which it emerged from the Select Committee in 1959 and was then handed to Mr. Roy Jenkins the Bill included a restriction on prosecution; but the then Attorney-General, my noble and learned friend Lord Dilhorne, as he is now, made such a powerful case against the restriction that, if my recollection is right, Mr. Jenkins accepted that it was quite overwhelming and withdrew that restriction. It seems to me those arguments are still as strong today, and I do not find them canvassed in the report.
Closely allied with the restriction on prosecution, I personally find objectionable that all the offences against the new Williams code are to be summary offences. That seems to me to be a trivialisation of the matters with which we are concerned, 200 particularly the offences so far as they relate to children. What is more, as I indicated earlier, deciding what is the standard of the reasonable man seems to me to be pre-eminently a matter for a jury in preference to even the most experienced body of magistrates.
My Lords, unless those matters to which I have referred—and there is one minor one more where I found the Williams Committee less than convincing and that was on the sale of loss-leaders from the porn-shops, which the Government might consider—can be rectified, and I see no reason why they should not be, it may well be that the Williams scheme cannot be accepted. It they can be, I myself would give it my backing.
§ 7.12 p.m.
§ Lord ARDWICK
My Lords, first of all, I should like to congratulate my noble friend Lord Strauss on his maiden speech. I have just been recalling to him that over 40 years ago he heard me make my maiden political speech in what in those days was considered to be a rather militant context; that is, I made it in company not only with the noble Lord, Lord Strauss, but Aneurin Bevan and Sir Stafford Cripps, on the issue of the Popular Front. I am very glad to follow the noble and learned Lord, Lord Simon of Glaisdale, because I agree very much with what he said at the beginning of his remarks, and certainly what he said about the written word. About other matters his legal experience and knowledge took me beyond my personal experience.
I want to start by expressing my admiration for Professor Williams' report. Not the least of its virtues is that it is so aseptic. As a newspaperman I have not led exactly a cloistered life; au contraire. But I must confess that I have never sought out pornography. Like my noble friend, I am still on my way to see Oh! Calcutta!, after six years, and I doubt whether I will ever get there. And curiously enough, pornography has never sought out me. But I owe my knowledge of its variety mainly to vivid descriptive condemnations of it by its opponents. I am not going to blame them for this because if they were going to convince the ordinary legislator, whom they could assume to be unaware of the horrid variety of things on offer, they had to 201 provide evidence. However, by the time Professor Williams and his colleagues got round to the subject they were able to assume that the knowledge of what pornography in all its nastiness is, is pretty widespread, though our knowledge of it is trifling, I imagine, in comparison with the ordeal that the committtee set themselves of inspecting the unsavoury material available in this country.
The subject is a difficult one, and all the more so at a time of rapidly changing standards of what may be said, may be written, may be depicted or even practised in ordinary decent society. We have reached a very strange stage of permissiveness. We once used to speak of unprintable language; that no longer exists, there is no such thing. There is now only unspeakable language, unsayable language. Words which are printed in the most highly esteemed newspapers read by all the family cannot possibly be voiced over the family dinner table. Nor would they be tolerated if they were repeated in this Chamber.
This report has a number of virtues. It is intellectually rigorous. I thought that one or two of its opponents were rather less than generous in regard to that. It is very clearly written and it is practical; that is, it has squarely faced the problem at the post-intellectual stage of the argument. How do you formulate a law so that all of us—citizens, police, judges, writers, printers and film makers—know where the legal limits are? Moreover, how do you frame an effective law, one that can be used and can secure convictions because it has general consent in the community?
The committee stood, as most of us do, between two camps: on the one side the extreme liberal camp which opposes all forms of censorship and regards abolition of censorship as something which is progressive; on the other the deeply-troubled people in the Festival of Light, the everyday disciples of Mrs. Whitehouse. I think the committee took their views seriously and does deal with them. They dealt with the problems that such people raise, I thought, with reason and respect and courtesy. Nor did they fail to appreciate that, while pornography may not have the effect on criminal behaviour that some people feel intuitively it must have, nevertheless its proliferation can be 202 an assault on human relationships and sexual values. I do not think I have read every word of the report, but everything I have read I found to be fairly convincing, though I would not go the whole way with all its recommendations.
Perhaps the most controversial section is the one in which the committee examined the evidence to support one's instinctive feeling that pornography, which so often deals with sexual violence, must inspire criminal sexual behaviour, and they find the evidence for that unconvincing. The committee conclude:It is not possible, in our view, to reach well based conclusions about what in this country has been the influence of pornography on sexual crime. But we do unhesitatingly reject the suggestion that the available statistical information for England and Wales lends any support at all to the argument that pornography acts as a stimulus to the commission of sexual violence ".This is the unlikely conclusion that has to be faced.
I was going a long way with the right reverend Prelate the Bishop of London in the opening of his remarks, but in the end he wanted to reject all the statistical evidence and to say that we must base ourselves on common-sense and gut reaction. My Lords, if we did that we would all be hangers and floggers tomorrow and we should all be racists today. It is, I think, a very bad counsel to say that you depend upon a mixture of common sense and gut reaction.
When we consider the committee's recommendations, we see a set of practical proposals. It is the moment when the philosophising has to stop and the committee must get down to something practical. They recommend that the term"deprave and corrupt"be abandoned, having outlived its usefulness, and the law as they see it should attempt to be not the guardian of our morals—that is not exactly the case because the committee do not say that absolutely, but say in effect that it should be very lightly concerned with the guardianship of our morals—but it must be there to ward off the harms involved, the type of harms which I think could be remediable at law. The law should protect us against what is offensive to reasonable people by the way it portrays cruelty, or horror, or sexual, or faecal or urinary functions or genital organs.
203 The committee would have no restrictions on the printed word. I join with the noble Lord, Lord Wigoder, and others in the doubts that they have about the wisdom of that. However, I take it that the committee are dealing with the matter wholly in the context of obscenity and are not dealing, for example, with the question of racism, because in the Race Relations Act there are restrictions on the printed word, and I feel sure that the committee would not want to remove them.
The committee then deal with the protection of minors. They propose a rational system of classifying films and they logically, but realistically, come down against a class of films which is unacceptable by any standards. For the pornographic addicts there are to be restricted facilities with no enticement to buy and no enticement to enter in. I am sure that it is not just a question of sweeping things under the carpet, but that it will have an immediate depressing effect upon the circulation of pornography. If one were the circulation manager of a magazine the one thing that one must do is fight day by day to get the bookstalls to exhibit one's magazine in a place that the customers can see it, because if they do not see it they will not buy it. I am sure that that is true of pornography.
I think that it is true to say that the committee's proposals can be found to be less than satisfactory, but we must be on our guard against perfectionism on this issue. We live in a society of changing values. We are in the midst of a sexual revolution which is unfinished but which may yet be reversed; indeed, at this moment the process of reversal may have started. We have as yet too little knowledge—despite the efforts by the noble Earl, Lord Longford, all those years ago—of the causation of crime. We are not certain whether pornography is a cathartic for the potential sexual criminal or whether it fortifies his potential for crime. I hope that the Government will provide time, during what may be a rather unacceptably long life, for legislation on this issue. The one thing that we can commend to them is that it will not cost a great deal of public money to put it into effect.
§ 7.24 p.m.
§ Lord BIRKETT
My Lords, while congratulating the noble Lord, Lord Nugent of Guildford, on this debate and the opportunities that it has given us, and while congratulating the noble Lord, Lord Strauss, on his admirable maiden speech, I must confess that this afternoon's debate has rather surprised me. I read the report carefully, thought that it was exhaustive, unusually well-written and on the whole an exceedingly helpful canter over a course which we have cantered over very often before. Therefore, as I thought that I rather approved of it, I wondered to myself whether I was not being rather reactionary in doing so. Imagine my surprise, therefore, at this time of the night on discovering that what I had thought might be a rather reactionary document has been widely regarded this afternoon as licentious.
I have been surprised by a number of matters—not indeed by the heat of argument that has been raised, but by some of the attitudes. In particular—I am sorry that he is not present because I should like to say this in his presence—I was surprised by the noble Earl, Lord Lauderdale. His reactions to the conclusions of this report caused me less than surprise; indeed, I could have predicted that they would have been so. However, his remarks about the committee itself and about its attitudes to its labours and its sense of duty, I thought bordered on the churlish and were quite undeserved by the committee. It has, I am sure, done a remarkable job whatever one thinks of its conclusions. I for one would like to congratulate it.
I join with the noble Lord, Lord Annan, in emphasising that neither we nor the Government are surely obliged to take this report lock, stock and barrel—to cat the whole report or not a morsel of it. It seems to be to have a considerable number of drawbacks and one or two in my own area, that of films, which I would like to mention briefly. However, there are surely helpful matters in all departments. I hope that the Government will find it helpful, even if they do not find their way to accepting most of its proposals.
I was bitterly disappointed at the end of the speech of the noble and learned Lord, Lord Gardiner, to find that he did not approve of the film section because I admired so much, as I always do, the wisdom and commonsense of his speech. 205 I rather approved of the film section, and so I am alarmed that he should not do so. However, I do not approve of all of it, and I hope that your Lordships will allow me to trespass on your time for a few minutes to go into a few details which might be of help when framing new legislation, if there is to be some, about a statutory body of film censors.
It is generally agreed and certainly acknowledged in the report, that the operation of the film censor has worked very well. Many people have disagreed with its judgment of individual films. Some actually disagree with how far it goes as a generality, but very few I think would disagree with the fact that it works very well. As an administrative entity, it is small, neat and operates exceedingly efficiently. Having said so in the report, I thought it rather surprising that the report regarded with such exaggerated horror the prospect of legitimising a body like the British Board of Film Censors and making it a statutory body. One cannot quite admire the operations of a body like that as much as that, and then show such a great state of shock about making it official.
I am rather nervous at the thought that one can add on top of an efficient body a hoard of 12 people without whom it has so far operated exceedingly well, because by doing so not only does one add 12 quite independent and in a sense unnecessary people, and one adds them really for the sake of respectability, but one also causes a danger which I think was overlooked somewhat in the report or at least skated over; namely, the danger of making the censorship of anything a Government agency.
In this country we are rather clever at distancing Government agencies from Government. The Arts Council is a marvellous case in point where the Government give money to the Arts and are at pains to be seen not to be administering it. All Arts Councils have lived very happily in that circumstance and I am a little alarmed that a body, which is a censorship body, should not be distanced in such a manner. Censorship through a Government body is, in fact, a great deal more dangerous in the administration of the arts. One has only to look at Czechoslovakia to see what a Government agency censoring the arts, and literature in particular, can do. It can, in simple 206 terms, stop all debate about the moral issues concerned dead in its tracks, because in a society like that there are no moral issues because morals are already decided for one.
Therefore, I am a little alarmed at the thought of a statutory body to replace the British Board of Film Censors simply by adding this enormous roof of a board over the top of it and making it a Government agency. Furthermore, I am a little alarmed at the function that that new hoard might have as a review body.
I understand that there must be an appeal against any body of censors, even an effective one; at the moment there is none, except, of course, to local authorities. The report is absolutely right in suggesting that local authorities do not welcome the function of being an additional film censor—a board of appeal from a professional censors body. Certainly I know that the Greater London Council, for whom I work, is almost unanimous in not relishing the thought of having that duty imposed upon it yet again. I am sure it is true that most local councils would not like it. Furthermore, I think it is true that Her Majesty's Customs and Excise have never been particularly qualified to IT censors and to remove their functions in the matter will, I am sure, be of benefit to everyone, especially to them.
Nevertheless, there must be some form of appeal and it is suggested in this report that the board which appoints these examiners should actually be the board of appeal. That might be possible, but when it is suggested that anyone has the right of appeal to them, but that unless it is the man to whom the certificate is or is not granted, why then the board does not need to see the film, that surely is liable to put the board in ridicule. In fact, so much protest of a moral nature about what is and is not shown in the cinema and on television comes from people who have not seen it, that to perpetuate that in a piece of legislation would seem to me to be very unwise.
I sense the difficulty which the committee must have been in. It said to itself,"If we allow everybody in the land the right to object to a grading by this board of censorship, hundreds and hundreds of quite irresponsible and nutty ' people will proceed to do so and make the life 207 of the board intolerable. Therefore, we will suggest that only when it is the man himself who is applying in the name of the film shall we need to see the film and we can dismiss the nuttier ' of these appeals out of hand." If that was their difficulty—and I suspect it must have been—surely the thing to do is to frame the nature of an appeal in such a way that only genuine and sensible appeals get through, and so that the vast majority of flippant, as it were, appeals do not get through. But to allow the appeals and then to allow those appealed to not to take any evidence on the matter seems to me to be simpleminded and should not be allowed.
I welcome the suggestion that there should be some restraint upon clubs. I am not someone who is much in favour of censorship, but I appreciate that it is absurd to make quite stringent rules in the film world about what one does and does not allow to various age groups and then, merely by the anomaly of a club which anyone can join who knocks on the door, simply wipe out the provisions of the censorship at one blow. Therefore, to include the clubs within a general censorship provision for films is both sensible and salutory and should, in fact, bring the whole world of films into what, in a sense, I regard as almost an ideal condition in terms of censorship—a world in which one particular medium is treated with immense thought as regards age, the premises and in all directions. It is something which none of the other arts—probably to its relief—actually has offered to it. However, as the cinema has it and does not look like losing it, it may as well be as well-run as possible. Therefore, the inclusion of clubs is probably a good move.
If I were the Government, I think that I would be exceedingly chary of designated cinemas. The idea of designating a cinema in which one of the dreaded 18-hour films—which, frankly, will be pornographic—can and almost should be run is a dangerous procedure. If we allow dirty films, I do not believe that of our own accord we have to invent dirty cinemas in which to run them. A great deal more thought needs to be given to this question of designation and licensed premises. I should have thought that a licensing provision for cinemas, which is a function that will, at least in the opinion of the 208 Williams Committee, still be in the hands of local authorities, could surely work without anything quite as graphic as a designated cinema.
Having said—perhaps rather boastfully—how proud the cinema industry is in having its affairs so well organised already in the matter of censorship, I should perhaps add that I am a little surprised that so little reference is made in the report to television. Of course, the committee was not obliged to do so; indeed, it was deliberately asked to exclude television from its report. But the fact is that what is shown on television is so enormously relevant to cinema licensing and to cinema censorship that by careful programming from Monday to Friday we can simply make a nonsense of the entire provisions of film censorship. The idea which seems to run behind television programming is that certain age groups go to bed at certain hours. That the little ones will be in bed just after tea, that the slightly more grownup children will go to bed around eight o'clock and that the others will all be in bed by eleven o'clock is demonstrably false. One only has to look through the windows of any house to see very small children up very late indeed and, therefore, quite at the mercy—if that is the right word—of films which we have taken immense pains to ensure that such children could never see in a cinema. I do not know what the television companies can do about this; I am not pointing any kind of finger at the planning of television programmes, but some thought must be given to the fact that if we over-elaborate the arrangements made for the cinema, we may run the risk of looking a little foolish by looking in the Radio Times or the TV Times for the same week.
I shall end simply by saying, as I said at the beginning, that I hope the Government find this report useful and the few remarks that I have sought to make on the cinema useful. If they see the need for legislation—and I believe that there is a strong need—I hope that above all they will remember that our freedoms come even before our moral good.
§ 7.27 p.m.
§ Lord VAIZEY
My Lords, I should like to join your Lordships in thanking the noble Lord, Lord Nugent of Guildford, for allowing this debate to take place. I 209 should like to congratulate the noble Lord, Lord Strauss, on his maiden speech. I want to make a couple of points in what I hope will be a brief speech. The first point I want to make deals not so much specifically with the Williams Committee as with the question of reports of Royal Commissions and departmental committees in general. Your Lordships will recall that some time ago the noble and learned Lord, Lord Gardiner, referred to the increasing sense of frustration which members of these commissions and committees feel when they have devoted a great deal of their time to membership of such a body and have worked very hard and very long to produce an interesting and informative report, only to find that no action follows. Indeed, often these reports are not debated in another place, though this House has a good record in such matters. Moreover, when such a debate has taken place, that is quite often the end of it—nothing else is done. Partly, of course, that is inevitable because often the reason committees like this are set up is to push the problem which is troubling the Government at the time to the periphery of the debate. However, I have a few suggestions which I want to take a little time to make; I think they are of general importance and of particular relevance to this report.
Would it not be helpful if the recommendations that are made in reports of this kind were addressed quite specifically to particular bodies for particular action? It is quite often easy for particular people to say that it is not their job but the job of someone else to implement a recommendation. There are quite a number of general recommendations in the report of the Williams Committee where it is not immediately obvious who should act. Also, where a report proposes legislation—and this report is predominantly about legislation—surely it should be axiomatic that the report should contain a draft Bill.
Your Lordships have seized the opportunity tonight to debate the general philosophical questions which underlie particular reports of this kind. But the real points which affect the liberty of the subject and the way in which public policy may be changed arise only when specific legislation is a matter for discussion in this Chamber or in another place. it cannot be beyond the resources of Government 210 to second a parliamentary draftsman to such a committee in order that the new legislation may be drafted for the committee in such a way that we in this House and Members in another place and lawyers can see the way in which the legislation would actually be framed and how it would actually work if it were brought before Parliament.
I turn specifically now to the subject of tonight's debate. The reason I have made this general point is because I think that the proof of this particular pudding is very much in the eating. I would think that it is much more important to discuss concrete detail than to carry on about the general principles which underline the Williams Report. Whether or not it starts from John Stuart Mill on the one side, or whether it owes any allegience to Lord Devlin, and so on, may be interesting philosophical points, but I do not think that they are terribly important at the moment. Whether one's line on pornography is hard or soft, if I may coin a phrase, the committee has brought forward a report of the greatest possible interest. It is beautifully written, as many Members of your Lordships' House have said. It is quite intriguing, by the way, to assign particular chapters to particular distinguished authors, which I think, to some extent, one can do.
The evidence has been submitted to the most rigorous intellectual tests. I was distressed to hear what my noble friend—if I may call him that—Lord Longford said about some sections there. It was not worthy of him to have said that. I have in mind particularly the testing to destruction of the material produced by Dr. Court of Flinders University on the relationship between pornography and crime. That argument will not hold water on the basis of the evidence which is at present available.
It would be a mistake to say, as some commentators have said and as has been said in this debate, certainly by implication, that the committee consisted of soft-hearted liberals and of slipshod thinkers. Professor Williams himself is a man of the highest intellectual distinction and, I should have thought, of very firm moral views. A committee could hardly be called soft which included a judge, a bishop, a chief constable, one of the most distinguished psychiatrists in the country 211 who is also a member of the Parole Board (which is usually criticised for not letting enough people out), and a number of people of equal distinction, including Miss Polly Toynbee, who has written two extremely brilliant books on her work in the army and in hospitals. It would seem to me that the last place to expect slipshod and emotional thinking would be a committee composed of people like that. I do not believe, either, that the committee does argue that the country ought, on liberal principles, to be submerged in a tide of hardcore pornography.
I would submit, however, that whether or not the committee did consist of softhearted liberals, and the report did advocate such a course, is not really the point. The point is whether or not the law can be enforced, whatever its content may be. If you take the strongest possible view against pornography that is all very well; you are perfectly entitled to that view. Indeed, the vast majority of the population probably hold that view publicly, but the question is if a law were devised and were passed by Parliament, could such a law he enforced?
The committee seems to me to have taken a tough line, in that it proposes a law which can be enforced. It can be done in this important way—and I think that this is something on which your Lordships will go along with me—in that it can be enforced without exposing the police, the law enforcing authorities, to the risk of corruption. When legislation which is based on high moral principles goes through this House, we often ignore the risk of corruption, and yet it surely is the nature of the case that there is widespread evidence that in all this area of enforcement of laws about betting, pornography, prostitution—all the morally dubious areas of life—there is always a risk. There is a substantial amount of evidence that there is a considerable degree of corruption in the law enforcement agencies, specifically in the case of the police.
It seems to me that the best example that we have of this is not drawn from this country but is from the prohibition of alcohol in the United States which followed the First World War, and which led to a breakdown of the authority of the police forces in the big cities of the United States, from which the police 212 forces in those cities have never since recovered. If we look at the proposed reform of the law in the Williams Report, the law is simple to interpret and it is relatively easy to enforce. It seems to me, again as a layman, that it is infinitely preferable to have a law which is drawn up on enforceable grounds rather than one which is drawn up on the highest conceivable moral principles.
During the debate a number of your Lordships have made the point about the recommendation about the written word. Unless I have totally misunderstood the argument which culminates in paragraph 6.10 of the report, that argument was principally concerned with whether or not such a law on the written word would actually be enforceable. The general opinion was that in fact a law which tried to redress the position which was held before the latest judgments of the courts would not be enforceable, and for a particular reason which I shall come to a little later.
Many attempts to outlaw pornography would lead to lack of enforcement. In the report it says that 4 million adult males—that is, one man in five between the ages of 16 and 65—is a regular reader of pornography. Any law which sought to outlaw material which is at present being read by that proportion of the population would, I submit, be quite plainly unenforceable. It certainly could not be enforced other than by selective prosecution. Unless I have totally misunderstood the way that these things work, if you have selective prosecution you are immediately back with the risk of corruption and unfairness.
I submit furthermore that any such tough law would run into repeated conflict with those who held that the particular items of pornography were either valuable in themselves or were of artistic merit, and the law would in fact he increasingly brought into disrepute by repeated conflicts with magazines which would draw upon that general reservoir of anti-governmental, pro-liberal feeling of which at the moment in this country is obviously reasonably full—some people might feel full to overflowing. Indeed, it would surely be open to question whether or not many juries could be found which would convict in a number of such cases. The recent letting-off of four anarchists 213 which led to Judge King-Hamilton's strictures on the jury should surely always he borne in mind by people debating the possibility of legislation in this sort of area.
I submit that those people who believe that the Williams Committee is too soft should ask themselves whether or not any tougher law would be more enforceable. My own judgment would be that if one could read a Bill drawn up along the lines that the committee recommends, one would see a Bill which was acceptable to virtually the whole community, and which was enforceable. That seems to me, if I am correct in the inference which I have drawn, to be a remarkable achievement and something on which we should congratulate Professor Williams and his committee.
§ 7.48 p.m.
§ Lord ROBERTSON of OAKRIDGE
My Lords, I am grateful to the noble Lord, Lord Nugent of Guildford, for the opportunity to take part in this debate on this important report. It is a debate that has already been graced by one admirable maiden speech. I should like to join those noble Lords who have paid tribute to the work of the Williams Committee. Whatever one thinks of their recommendations it is quite clear what they recommend and why, and a great deal of work must have gone into the matter.
However, there is one point that I should like to take up on something that has been said as regards the committee, which in no way is intended to reflect any criticism on the members of the committee, or of course on their integrity. It has been drawn to our attention that the report was completely unanimous. This is indeed remarkable. Bearing in mind the variety of views expressed in your Lordships' debate today, and the general controversy that surrounds the subject, it is a remarkable feat that 13 people were assembled who could produce so completely unanimous a report. Sherlock Holmes wrote about the dog that did not bark in the night. One might think in terms of the committee that did not disagree.
I will begin with some general observations on the subject of pornography and, in the light of those points, say why I feel the report's recommendations are less than entirely satisfactory. In making these 214 general observations, I have, because it helps me always to get a subject into perspective, drawn on Christian teaching on the subject. My first point is perhaps almost too obvious to mention, but it has not been mentioned, or, if it has, it has not been emphasised before but is worth emphasising; namely, that we are not in the least trying to regulate private morals. What we are trying to do is to order and regulate a widespread and highly profitable industry with readers numbered in millions and profits likewise.
My second general point concerns the potential for evil in pornography, and I stress the word"evil"rather than"harm ". The industry with which we are concerned exists on account of its capacity to stimulate thoughts and fantasies largely concerned with the misuse of sex, violence and sadism. Christian teaching on these matters is quite clear; they are wrong in themselves. Furthermore, Christ was at pains to emphasise that even unnecessary thoughts on these subjects were evil and were the very things, in his words, that defile a person.
If one accepts that pornography is an expression of evil, then I maintain that the arguments and statistics to establish whether it causes harm become of secondary importance because evil gives rise to evil effects, and this we can sec in regard to pornography in a number of ways. First, pornography exploits the weakness of its readers or viewers. Any of us who has had to read this material must he only too conscious that it can stir up within us the latent nastiness that lies there and we can realise how easily it becomes addictive. Incidentally, one must query the report's conclusion on the connection between pornography and sex crimes which conclusion appears to be that it is not proven. I doubt whether a recent head of the San Francisco police department would agree. It is reported that, when he was asked to what he attributed the upswing in rape crimes, he pointed to his pin map which showed that attacks on women clustered around so-called dirty cinemas, and furthermore that such attacks were not only becoming more brutal but were reflecting the situations portrayed in those cinemas. If that is correct, I would be sorry for any community surrounding one of the cinemas designated to show such films
Secondly, pornography also often exploits and degrades those involved in its 215 protection, as we remember from our debates on the Protection of Children Act. Thirdly, it works against stable family life. Lawyers active in the divorce courts have asserted that it leads men to expect as of right an unrealistic level of sexual fulfilment which makes them feel disappointed when they do not get it and their wives feel guilty and inadequate, and it leads them to try out sexual practices in their marriages which are obnoxious to their partners.
Lastly, the effect of pornography is to attract criminal elements, and it has been stressed to me by those in the security business that the best answer to this is a police force, so far as possible above suspicion, achieved by well-exercised internal supervision and the maintenance of a high moral standard of officer, and I hope we will continue to give the utmost support to those at the head of our police force who are trying to attain and maintain those things. As I see it, the report shies away from the concept of pornography as involving evil, and in my view this means that it misses an essential point.
My third general point is that the control of pornography is something we must take very seriously indeed. In his teaching on the seriousness of evil thoughts, Christ, to emphasise the point, told us to pluck out our eye if it offended us; in other words, if it was the cause of our evil thoughts. However one interprets and applies that injunction, it must surely have a direct and urgent bearing on the subject of pornography. Therefore, those of us who wish to see an effective control of pornography need not be diffident or apologetic. It is something that every caring society should want for its citizens as a matter of high priority. The report states that, to justify legal provision, causation of harm must be proved beyond reasonable doubt. As The Times leader of 29th November indicated, that lays too heavy a burden of truth on those who wish to control pornography. It seems that because the committee did not recognise the potential for evil in pornography, they did not take a serious enough view of its control, and this colours their recommendations.
Now to apply those points to an assessment of the report. First, I feel that in general the committee is greatly to be commended on identifying the problem 216 of offensiveness, and one largely agrees with its recommendations. In passing, I would mention that, as was brought out by the report of the noble Lord, Lord Annan, two years or so ago, there is a problem in broadcasting which was outside the terms of reference of this committee. I will not say anything on the question of written pornography, except to support noble Lords who have pressed for its inclusion in any law of offensiveness, and it might be worth pointing out that magistrates, despite what has been said today, are continually declaring written works obscene, leading to their destruction.
Offensiveness is just one problem. It is the weakness of the other controls recommended in other areas that concerns me most. Under the report's recommendations, the only items to be totally banned are photographs and films whose production involve children or physical harm or, on the stage, real sexual activity which is offensive. All other photographs, drawings and texts, however vile, would be available subject to restrictions which would have a limited effect but which to say the least would not be guaranteed to prevent such material getting into the hands of children. And we should remember that pornography on paper anyway is like any other matter on paper. There is no magic about it; it ends up as litter and not always in people's wastepaper baskets. A friend of mine two years ago had something pretty nasty thrown over the garden wall which obviously someone had been reading at the bus stop outside. Therefore, in my judgment, because the committee has not recognised the potential for evil in pornography and has not taken a serious enough view, the proposed area of prohibition is too narrow.
It will be said, then, how is it to be decided what is, and what is not, acceptable It seems to me that there are two requirements that need to be reconciled. In the first place, so that the industry, the public, the police and the courts know where they are, there is the need for the law to be as simple, clear and specific as possible. If possible it should not depend on the interpretation of phrases whose meaning may be debatable. On the other hand, as the report quite rightly points out, because of the difficulty of defining specific areas to be prohibited, and because of the need 217 to keep the law in line with public opinion and standards which do not remain static, there must be an area of discretion where the courts, as representatives of the public, can act as arbiters; and I would emphasise"the courts ", not the officials in the DPPs' office, for the reasons so clearly stated by the noble and learned Lord, Lord Simon of Glaisdale.
I believe that legislation to ban the worst forms of pornography should have two aspects. First, if there has to be a test of obscenity, of the word"obscene "—and perhaps "pornographical" might be a better word—it should be thatits effect, or the effect of any part of it, is to outrage contemporary standards of decency or humanity accepted by the public at large ".Secondly, within this general area, consideration should be given to an absolute prohibition on any visual representation of the worst specific forms of sexual misuse and cruelty: for example, sexual practices with children, bestiality and sadism. In addition to that, one would have the law on offensive or indecent displays.
In conclusion, the report is valuable in that it stimulates discussion on a situation that is manifestly unsatisfactory at present. However, because in my view the committee did not recognise fully the potential for evil in pornography, they did not regard its control seriously enough, and as a result I do not believe that it would be wise to scrap existing legislation and to proceed entirely on the basis of their recommendations.
§ 8.2 p.m.
My Lords, it is always a privilege to follow the noble Lord, Lord Robertson of Oakridge. At this time of the evening I do not think that I should be expected to say very much and I shall say very little, which I think will not disappoint your Lordships. I must say three things to begin with. First, I wish to thank the noble Lord, Lord Nugent of Guildford, for introducing what I think he described as this unattractive but not unimportant subject. I think that the country is divided into those who think it is important and those who think it is unimportant. No one who has spoken in the debate thought that it was unimportant, and I think that most of us would agree that the subject itself is unattractive.
218 Next, I want to congratulate the noble Lord, Lord Strauss, whose maiden speech I listened to with great interest. There was only one sentence of it that I failed to understand, and I think that the noble Lord, Lord Annan, did the same, but I will not go into that now. I shall read the speech with great interest tomorrow, bearing in mind that there was a part that I was not able to follow; the rest of it was a great contribution to the debate.
Thirdly, in his absence I ought to apologise to the noble Lord, Lord Wigoder, for speaking from the Liberal Benches. At the risk of being accused of being a soft-hearted Liberal—or more likely a hard-hearted reactionary—I shall not be disagreeing with anything he said, though drawing a differing conclusion. I agree very strongly with one thing he said, and which so many of your Lordships supported that I need not go into it. That is the question of the printed or written word being left out. That is important to me because the times in my life when I was most tempted by pornography, before I had ever heard the word or knew anything about sex, arose entirely from written words rather than pictures. That may be a personal peculiarity—I don't know—but, provided people can read, I do not think that it can seriously be denied that written or printed words can have an effect. The noble Lord also raised the point of gramophone records, to which I may return in a minute or two, after I have said the only other thing that I want to say.
On the subject of words we have all been told, and know, that pornography is a very old thing. Some people say that it is no good trying to prevent it, that we will never get rid of it. That may be so. It may or may not be that the right way to proceed is not to try to get rid of it but, as the report so admirably tries to do, to restrict it. But although pornography is an old phenomenon it is not an old word. In fact, speaking without knowledge, I do not think that it was used before the last century, although pornography certainly took place on a very large scale all over Europe, and the rest of the world. I sometimes wonder why that is. I took the precaution of looking up in some admirably small Collins dictionaries to see what word other countries have for it. I could not find 219 such a word in any of them. With two exceptions they all went straight from"pork" to "porridge", which might be some indication that it is not yet a respectable word. I think that the Latin and the French dictionaries interpose the word "porous", which I take to mean "having holes in it".
Although a great many words which are pornographic are now in print there is still a great tendency to try to make pornography respectable. That may be right for those who think it has curative properties. The noble Earl, Lord Longford, thinks that it ought to remain unrespectable—and I must say that I agree with him—without imagining that one can easily destroy it altogether. There are at least three ways of making something respectable, or making it appear respectable, when it is not. One of them can be seen by quoting Sir John Harington, who said:Treason can never prosper; for what reason? That when it prospers, none dare call it treason".I suppose one could say on the same lines:Pornography cannot be legal traffic. Once make it legal, it's not pornographic".That is one way of doing it. Another way of course is to alter the name. If we ever have a Pornographer Royal or someone of that kind, he would not be called that, but might be called "Pornonomer Royal", or possibly the "Minister of Pornometry".
The third way is concerned with altering the climate of opinion and it is on that subject that I wish to say a few words. The last time I spoke on this subject, which was a very long time ago, I tried to reduce not my ideas but what I thought were the ideas of the ordinary reasonable man, as briefly as possible to a clerihew, which so far as I can remember, ran:PornographyHas something in common with geography,Each of them is fine,If you know where to draw the line".Since those days a good deal of water has passed under bridges. We know the difficulty of having vague boundaries, of not drawing lines; but we also know the great difficulty of drawing a line too quickly, and rushing into trouble.
One of the headings in to-day's evening paper stated:Rush hour train runs into buffers".220 Well, the buffers were not strong enough. I noted the amazing rapidity with which the climate of opinion alters when I also saw in the same paper the headline:Boy killed by giant snowball".One would have thought that impossible some years ago, but it now has happened.
I fear that pornography is like a giant snowball. It has been growing at an alarming rate, and my suggestion is that the word is new only because it is fairly lately that it has become what I think can be called a new religion. I think that we would be fooling ourselves if we said that the national religion of this country is Christianity. Some of us would like to keep it so as far as possible, and I agree with every word that the noble Lord, Lord Robertson, said. But I think that if one had to ask: what is the religion that is gradually endangering or, if you like it, saving the country?, one would say it is the worship of sex. Sex is an excellent thing, a necessary thing. So is food; so, indeed, is money. The Victorians were accused of worshipping mammon: I think we may be accused of worshipping Venus. But if we worship both mammon and Venus at the same time, that seems to me to give a definition of pornography, which could be,Exploitation of eroticism for commercial purposes".Whoever may support this, I would personally be against it, and I should like to go on record as still being against it despite the admirable and excellent work put in by this committee, because I believe that much that they say is perfectly true and clear, but needs to be looked at very carefully before one legislates on it.
The other thing we have to remember is that the climate of opinion (which is an expression I do not like) consists of a number of individual opinions. King Canute has rather unfairly been accused of trying to stop the tide when he was not a drop of water or a wave. In fact, he was doing nothing of the kind: he was demonstrating that it could not be stopped. To try to demonstrate that the climate of opinion cannot be stopped by enough people with opinions expressing them is, I think, a fallacy. There is a difference between trying to stop a natural thing like a thunderstorm and altering an opinion. I can speak from the very little 221 experience I have had in this House on the abortion matter, as I was one of, I think, seven Peers, and perhaps the only non-Roman Catholic, who voted against the present Abortion Act. We were quite unsuccessful, but since then I think a great many things that we said have been proved right: so one never knows whether what Lord Wigoder described as "the textbooks of tomorrow" may not again be altered by the textbooks of the day after tomorrow. This is a very long-term subject, and a very important one.
My Lords, I have already spoken for nine minutes, which is too long, and I would conclude by saying that, although "pornography" is, I believe I am right in saying, a new word, I was interested to see in a dictionary that, although I could not find "porny" or "pornometry", there is a word "pornocracy", which was described as being:especially applicable to Rome in the 10th century".That is no indictment of the Roman Church, and I am not trying to show off my knowledge of history; but if, in the 20th century, instead of plutocracy or democracy, or even hereditary aristocracy (which heaven forbid!), pornocracy becomes the accepted government, I very much hope I shall not be alive to see it.
§ 8.13 p.m.
§ Lady KINLOSS
My Lords, I join with other noble Lords in congratulating the noble Lord, Lord Nugent of Guildford, for having initiated this debate and for having explained the report so lucidly and concisely. In a report of this character so very many different points are raised that in a short speech it is possible to deal with only one or two of them. No one, I suppose, can approach this subject with a wholly open mind. It is not our function in your Lordships' House to attempt to legislate to make then moral; but it is possible, nevertheless, to abstract certain common principles which your Lordships' House is accustomed to follow. I could not help reflecting during the Christmas festival, when, in our home, we had greetings cards from Buddhists, Hindus, Jews and Moslems, as well as from fellow Christians, how many fundamentals we all have in common. All agree in having positive attitudes towards marriage and the family. All, taken together, comprise 222 the great majority of our nation. It might have been expected that the committee responsible for this report could have started from some position of this kind, where there is common ground.
I find it extraordinary that a member of the committee, the Bishop of Bristol, has said, as reported in the Church Times of 30th November 1979:I cannot think that addiction to porn is a serious problem ".In the Church Times of 14th December 1979, there was a very remarkable letter by an ex-police officer of 25 years' experience, spent chiefly in the CID, who subsequently became a clergyman—a Mr. Ward. He said that he could not disagree with the bishop more, and that many of the hard porn men and youths are perverts; and, as he said, the girls on the streets could have told the bishop this. Mr. Ward asked where they learned to beat and mutilate. Could this be self-taught? One would not think so. It may he true that some of the addicts of porn are frustrated people, but others are violent perverts. Mr. Ward continued, and I fully agree with him:…that perhaps the committee should have visited a mortuary and seen the body of a girl after such a man has finished with her.Looking through the report, I can find no trace that the committee ever visited a police mortuary actually to see for themselves.
Mr. Ward said to me when l had the privilege of a conversation on the telephone with him that he believed there was not a single member of any crime squad who would believe that there was no connection between porn and many sexual crimes. He said that the forms of mutilation practised on women could be derived only from pornographic books. No one could have informed himself by reading ordinary medical works. The report also denies any connection between the written word and incitement to what I shall describe as unnatural and perverse behaviour. How powerful the written word may be has been described by a novelist, the late Stuart Cloete, whose The Abductors, with the sub-title"A disquieting novel about white slavery in Victorian England ", was published in 1966. There is one passage which is particularly relevant here. It describes how a governess, a young girl, was kept naked alone in a room in a Paris 223 brothel. She was allowed nothing to do but to read pornographic books that had been given her. Completely shocked, at first revolted, she came slowly back to them, aware of danger but drawn by boredom. These were well and subtly written, their poison cumulative. What she had thought of as vice was presented as a pleasure until she came to accept it.
This, in a nutshell, is what pornographic literature, with its gradations from soft to hard porn, is about: the perversion of the natural decent instincts of human beings into vicious and eventually unnatural behaviour. The problem is how to prevent this. The report shows that the present state of the law is inconsistent as between what the Customs may let in from abroad and what the law prevents being published in this country. Plainly, this is a matter which must be cleared up. I do not see that the report has very helpful suggestions, and, as The Times of 29th November, 1979, pointed out, it is inconsistent to make film censorship much stricter and to do away with censorship of the written word. I hope that the free and open discussion and debate which has taken place today may assist the Government to produce proposals that in due course we shall be able to enact.
We should congratulate Her Majesty's Customs and Excise officers, and the police force, that they have been able to diminish the flow of porn. It is clear that we need to strengthen the hands of the police in their efforts to prevent the degradation of men and women, and of the family. I would not suggest censorship before publication, because this would be an almost impossible task; but a law against the dissemination of obscene and perverse literature—and by that I mean pornographic literature—should be made most unprofitable to the publishers and distributors. If I understand it correctly, it does not include either the printers or the authors. Surely, my Lords, no one should be permitted to become rich by degrading other human beings.
§ 8.20 p.m.
§ Lord MILVERTON
My Lords, first I should like to congratulate the noble Lord, Lord Strauss, on his maiden speech and, as many other have done, to thank my noble friend Lord Nugent of Guildford 224 for giving us the opportunity to talk about this subject. As will be evident from what I say, there are those who have some anxiety about this subject and are disturbed about it, they are not happy about the Williams Report. Then there are those who are more happy and relaxed about it. I respect their views, but cannot feel in agreement with them. We are giving consideration to a subject which is delicate because the subject matter concerns the feelings and senses of human beings, physically, spiritually and mentally, in a particularly deep way. Therefore, we have a sense of awe because of the potential beauty that can come from the way the feelings and senses are handled. We are pleased that the Williams Report is aware of the distastefulness, viciousness and ugliness of pornography. But is it an awareness that brings about a desire really to tackle this nasty subject?—a dull, boring matter in many eyes, including young eyes. Those of us who would like to see every person given dignity cannot be satisfied or happy with the report. Surely, all that it is doing is trying to keep this business of pornography under control rather than wiping it out by bold and vigorous action.
Pornography has been with humanity always but does that give it a pass mark, a yes? No, not necessarily so; especially for those who believe that man and woman are created for something richer and fuller. This pornography is a moneymaker—a maker of filthy lucre which involves not only the producers of pornography and its users but the people who are in between, the sellers.
I mentioned a short time ago bold and vigorous action. Could not a way be found to make the business extremely difficult to carry out, to make it unprofitable so that it is awkward to propagate and not easy to come across? It has been suggested in the report that if good does not come from an action, it need not necessarily be harmful. Is that so? Surely any action must bring in various degrees of good or bad. This is how people who believe in good and light direct their eyes in assessing any subject; and this applies to pornography as to anything else.
I am going to quote from one paragraph and merely mention others. I am going to quote from paragraph 81.4 on page 107. The word I would like to bring out is 225 "involvement". Are we saying that a balanced judgment can only come by physical involvement? Have we not been given a spiritual power of perception, a conscience or morals, so that we can see what is harmful or not? I quote:There is another kind of work which may be experienced as offensive, and also be experienced as having aesthetic interest, but in the case of which these two experiences do not occur at the same time. These will be works which are found offensive at first or by a spectator who remains distanced from them, but which lose that character for someone who is involved in them. The question of how one can combine at the same time aesthetic interest in the work and a sense that it is offensive will not then arise, though these works will still be offensive works ' in the sense of works which could prove offensive to a casual viewer or to someone who came across them and was unwilling or unable to involve himself in them.I would consider myself a sorry person if I felt that before I could make a decision about pornography and suchlike things I had to involve myself in them. As regards paragraphs 11.3, 11.7 and 11.9 on pages 137, 138 and 139, yes; perhaps a good basis to agree, but some of us would soon depart. This would be because some of us would say, as I suggested earlier, that whatever the form presented to people, harm must in some way result, even just through the suggestion being put into the mind. I mention paragraph 10.3 on page 130. I shall not quote part of it as it is late. Restriction rather than prohibition is better than nothing. Perhaps there is sense and correctness in having the same law in respect of acts of buggery, as mentioned in this paragraph.
There are those who are happy with these arrangements while others are unhappy. The reason is that they are all unwholesome, rather degrading and lowering of the stature of a person. We are caught up in the work of creative tension, as was said to his diocese by the Bishop of Bristol—whose diocese I am in. In our actions we show something of our idea of creativity. What is the body for? What is the spirit for? What is the mind for? What is holy and natural in this pornography business? Are we not making the natural unnatural, and the unnatural natural, the good bad, and the bad good? The human being may think that freedom is being found with the chains of inhibition being thrown off—with no more stifling of the personality. The suggestion can be put forward that the opposite is happening. We are in these 226 ways putting chains round ourselves so that we become slaves to unhealthy elements. Humanity loses freedom and liberty in every way rather than gaining the former in mind, soul and body.
There are these other points where the report is weak and open to question. Paragraph 5.31 on page 59—and others have already mentioned this—says that harm shall be established beyond reasonable doubt. How can this be, when each person's reaction will vary? Is there a measured norm for harm? In paragraph 12.10 they express caution since the evidence for belief in the harmlessness of sadistic material is not conclusive. In paragraph 12.9, on page 144, they make the point that experimental research is a weak means of deciding the issue. Paragraph 4.23 deals with the question of the effectiveness of the law. We know of one place at least—Manchester—where it happens that the police have had some success; but I believe I am right in saying that on the whole that is not so in the rest of the country. Does that mean that for some reason or other Manchester has some particular conditional situation whereby the police have been able to be more effective?
Paragraph 6.66, page 89, may lead one to wonder whether there was a deep and broad enough field of the fullest scope among those listened to by the committee for evidence? Did they give a reasonable hearing to all? The field from the traditional to the modern and radical is large.
My Lords, I have given a few thoughts on the Williams Report with the suggestion that much more is needed to make pornography a weak and lame commodity. That is the emphasis—to make it a weak and lame commodity. I suggest that Mr. Johnston, the Director of the Festival of Light, brought out very clearly the weak points of the report. I agree, as the noble Lady, Lady Kinloss, also said, with the report in the Church Times of 14th December. Two letters expressed concern about this report as well as a letter from Mr. Johnston. The first letter was from Philip Crome. He makes four points:1. It makes legal 'hard' pornography. 2. It allows 'soft' pornography fully to continue (although maybe in a different retail outlet). 3. It removes all legal control over written pornography. Not only does this give 'soft' porn- 227 ography total licence; it must eventually adversely affect children. 4. It removes from the public, via their elected representatives, any control over obscene films. Whereas in the past local authorities could exercise some control over undesirable developments in the film industry, the proposed Film Examining Board will be able to permit virtually anything".The noble Lady, Lady Kinloss, mentioned the article on the Bishop of Bristol in the Church Times of 30th November which resulted in those letters, particularly one from a policeman who is now a clergyman. I cannot quite agree with my bishop when this was on the headlines of the Church Times:"Obscenity report is Christian With all due respect to the Bishop of Bristol—and he is a learned man—I cannot quite fully go with him.
§ The Earl of LONGFORD
My Lords, may I interrupt? Surely the noble Lord is completely free in this House to disregard his bishop totally. Is not that the position?
§ Lord MILVERTON
Yes. My Lords, the leading article of The Times on 29th November last year, which the noble Prelate, the Lord Bishop of London, mentioned, is very clear in its analysis of the weak points of the Williams Report; particularly, it seems to me, where it argues cogently that the report is wrong to say that"the causation of harm"should lie beyond all reasonable doubt before legal intervention is justified in cases of pornography. The writer of the article sees clearly the danger of the reductionism which colours so much of our thinking in modern society. Human behaviour cannot be reduced to or fully understood in terms of reactions which can be explained or proved in a narrow, scientific or clinical sense. If there is a significant risk of harm occurring, then I agree with the writer that this would justify legal intervention.
Finally, does prohibition for pictorial pornography alone make sense? There is some control but once a person is outside a shop which has been licensed for that, there is no control. Is this sense? Trial by jury is suggested only in a case of prohibition. Is this sense? Why not for any case of the breaking of the restriction code? Only the police can prosecute, not the public. Therefore a private individual cannot. Is this 228 sense? I hope that your Lordships will give my noble friend Lord Nugent your fullest support with his Motion and that the Government will give due consideration to him as well.
§ 8.36 p.m.
The Earl of HALSBURY
My Lords, speaking nearly last—unless somebody makes an intervention when I sit down—I will try to be brief. I should like to start by thanking the noble Lord, Lord Nugent of Guildford, on his sustained initiative in bringing this matter once more before your Lordships' House. He has recruited to the team that he has fielded on this occasion the noble and learned Lord, Lord Rawlinson. I was very glad to find myself batting on the same side and to be able to record the great pleasure that I had in listening to his speech, as to the maiden speech of the noble Lord, Lord Strauss. He cut some skilful figures over some thin ice but his skates bore him safely to an elegant conclusion. I am sure that your Lordships will look forward to similar performances on a future suitable occasion.
My Lords, dog does not eat dog. As the chairman of committees of inquiry whose findings have been debated in your Lordships' House from time to time, it would ill-behove me to be ungracious in regard to the hard work put in by the team that wrote this report, even if I cannot go quite as far as my noble friend Lord Annan in supposing that professors of moral philosophy necessarily hold views with which I would agree. An academic post is filled by somebody who has achieved distinction in the teaching of students in their education across the field of his subject matter; it does not follow that he himself believes everything that he has to teach. He may teach a great many things in which he does not believe. A professor of moral philosophy might well have been a liberal humanist who thought that there was no such thing as absolute right or absolute wrong. It would be no criticism of his academic distinction to draw attention to that.
Our debate, in the vernacular, is about dirty talk, dirty books, dirty pictures, dirty jokes. dirty films, dirty plays and, quite possibly, dirty old men as well. In the vernacular, we know what we are talking about. It is only when we desert the 229 vernacular and go to words which once upon a time meant something but which have now lost their original meaning without acquiring anything defined by way of alternative that we find ourselves in the difficulties to which my noble friend Lord Tranmire referred. "Obscene" meant literally etymologically "unsuitable for the stage". The noble Lord said it had dramatic contexts. "Porné" in Greek meant "prostitute". Pornography is the literature of the brothel and the stews. Their meanings are no longer confined to their etymological derivation. I thought that the treatment of this aspect of the subject in the report was rather disappointing. I should have liked to see something more detailed and scholarly than anything suitable for me to lay before your Lordships' House at this late hour.
In the course of the debate four years ago I made two suggestions, half of which have been acted upon in the report and the other half of which are dismissed. One of my ideas was that one would treat pornography as one treated the betting shop or the liquor shop, and license it so that one had the formidable sanction of the withdrawal of licence as a means of enforcing obedience to the precepts enjoined under whatever Act, code, or regulation, whatever it may be. This can be criticised as being illogical, to condone what one condemns by licensing it, but only if it is thought that there is a necessary connection between condonation and control. I do not think there is, and therefore there is no necessary logical anomaly as to proposing the licensing.
The objection to that proposal of mine is simply that it is liable to be misunderstood: that has nothing to do with logic—misunderstanding is"politics". The report has not followed the suggestion of licensing, but at a price—all you have got recommended in the report is six months in "stir" or £1,000. To a wealthy industry like this, a thousand pounds is chicken feed and the chap who will go to jug is the "fall guy" employed for that purpose. So do not let us be under any misapprehension as to the very powerful sanction that you abandon if in the interests of what I would call a "pseudo logic" you refrain from utilising the loss of licence by its grant in the first place. I am not interested in the intellectualist perfectionism that likes to clothe ineffectiveness in logical filigree. I want to be effective and get 230 things done, and if I can get only 90 per cent. of them done I will settle for that.
I then come to the next matter which is dealt with in the report. I asked: "Why bother about these definitions? Why not treat what you want to abolish ostensibly by saying that we abolish, this, this, this and this?" I suggested: "You had better go through the index from Krafft-Ebing's Psychopathgia Sexualis, and pick out the proper names of all the sexual perversions listed in that book and simply say, 'We ban these'."
The committee looked at that, and what they say at line 27 on page 121 is this:Another problem is that to base a law on an explicit statement of what is prohibited requires that the statement should also be exhaustive. We found, however, that it was far from easy to be satisfied that any definition covered all the ground that it should".Why should it be exhaustive? If it catches 90 per cent. of what you want to catch, is that not better than catching nothing at all? On the next page they proceed to go into reverse. To deal with the matter of restriction, they then proceed to do what they said cannot he done, which is to recite it—violence, cruelty, horror, sexual, faecal or urinary functions or genital organs".This is their conscience working now—all of a sudden, you see, the logical filigree starts clothing the elegant nude!The introduction of this specification does not mean a reversion to the list approach".But, my Lords, that is exactly what it does. They have listed what is to be restricted, and if you can list what is to be restricted why cannot you list what is to be prohibited? In fact, and I must be blunt, it is not a very long list. I do not wish to give offence but there are only two orifices on the male and three on the female body. There are very few organs of penetration and the number of permutations and combinations of those only adds up to a round dozen or so. You can perfectly easily list them—and here I come to the suggestion of my noble friend Lord Nugent, if I may so refer to him, on sticking to the old common law of obscenity and indecency. But why not couple the two together and talk of—and here I put it in the nominal rather than the adjectival form:obscenity, including any representation or description of "—231 here follow the ten sexual perversions which cover 99 per cent. of what one wants to prohibit—or other comparable matters similarly calculated to coarsen sensitivity to higher values",or words to that effect. I think that is a perfectly feasible and possible thing to do.
It can be applied to the written word. I see absolutely no reason to exempt the written word from the sanctions one is trying to impose on the photograph, the moving picture, the television display, the obscene theatrical performance and so on. The written word should be subject to it, and I agree with every single word that has been said, starting with those of the right reverend Prelate the Bishop of London, when he said that the written word enables you to clothe a skeleton with your own imaginative detail. I believe that is very true, and it is a danger which should be safeguarded against. I was also deeply impressed by what my noble friend Lady Kinloss said about the necessity of coming down to earth and seeing the horrors that are perpetrated following upon people's fantasies with sadistic literature and such matters.
I see that I have not yet reached ten minutes but I am sure your Lordships will be grateful if I economise on one and conclude what I want to say once more by expressing my thanks to my noble friend Lord Nugent.
§ 8.45 p.m.
§ Lord HAMPTON
My Lords, at this hour and following a long and informed debate I hope your Lordships will bear with me if I make just three points. As my noble friends Lord Wigoder and Lord Barrington have done, I am putting my personal views and not speaking for my colleagues. As a Liberal I should like to dissociate myself from that horrible word,"liberalisation"—an ugly word, I submit, as used in this context for an ugly process.
Secondly, after my study of this report by a very distinguished committee it came as a breath of fresh air to read on page 244 in that quotation from Professor Clor in 1974 the following words:People are influenced by what they think others believe and particularly by what they think are the common standards of the community. There are few individuals among us whose basic beliefs are the result of their own reasoning and whose moral opinions do not require the support of some stable public opinions".232 It goes on:The free circulation of obscenity can, in time, lead many to the conclusion that there is nothing wrong with the values implicit in it—since their open promulgation is tolerated by the public. They will come to the conclusion that public standards have changed—or that there are no public standards. Private standards are hard put to withstand the effects of such an opinion".Thirdly, and lastly, I must say that I wholeheartedly agree with the right reverend Prelate the Bishop of London in his reference to Saint Paul's words, and that rather than having pornography we should try to encourage people to think on things which are,true, honest, just, pure, lovely and of good report ".
§ 8.47 p.m.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, may I begin by putting at ease the worry of my noble friend Lord Longford, which is that though I speak from the Front Bench I speak without consultation with any member of my party and I do not give an official view. I am surprised that in a non-political debate, the noble Earl ever thought such a thing was possible; but, anyway, that is not what I am doing.
I am filled with depression and astonishment. It seems to me that there is a distinct feeling in this evening's debate that anybody who supports the conclusion of the Williams Committee approves in some way of pornography. This may be quite unfair, but certain things have been said. For example, the noble Lord, Lord Milverton, said that it was not the report of a Christian, despite the fact that his bishop was a member of the committee. The noble Earl, Lord Lauderdale, attacked the good faith of the report and described it as"hypocritical" and "snide".
So far as I am concerned, I am very much nearer to the noble Lord, Lord Nugent, than to either of those noble Lords, because although he and I have crossed swords on this sort of matter several times we have never been all that far apart in our views, and tonight I do not think we are really very far apart at all. I think the noble Lord feels as I do—that one of the worst harms that pornography does is to spread it out before the public in Soho and in public places, and at least if we can stop that we shall have done something useful. This report, I 233 think, gives a perfectly workable way of stopping this practice. I, for one, am delighted that it should do so, and I was hoping and expecting that people in general would say: "We think it ought to go further, but as far as it has gone it is good".
This to me is a frightfully depressing situation, that noble Lords who feel so strongly about this matter can give no credit. I speak as a Churchman, not as a humanist, and as a Churchman who follows Mill rather than Lord Mansfield, and Hart rather than Lord Devlin. I resent bitterly the attitude that has been shown throughout—not from all members but from many—that those of us who think the proposals of this committee are useful and sound as far as they go, are in some way supporting pornography. Having said that, I had better try to recover from my irritation.
If you grant that something is bad in itself—and, of course, we grant that pornography is bad in itself—the real question here is: Does this give yor the right to interfere with somebody who wishes to indulge in it without doing any harm to anyone else? This is not a very unreasonable proposition to put, and the answer to which the committee came is the same answer to which I shall come and the same answer as that to which Mill came. It is not an answer with which we agree in the whole of the Mill theory, but it is here and there.
§ The Earl of LONGFORD
My Lords, may I ask the noble Lord a question? I am sure that the noble Lord is not seeking to mislead the House by suggesting that John Stuart Mill dealt with this problem. He dealt with a much more abstract and generalised question. Pornography did not come under his review, but it may have occurred to him that someone who is corrupted by pornography does corrupt others. Therefore, Mill would have been very upset by that.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, I am glad that the noble Earl agrees that Mill would be on my side over pornography and not wishing to upset——
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, in the days of the Spanish Inquisition, for example, the State punished people who admitted not believing in God. No one outside Iran would think that right today. Times change and so does society. In South Africa there is legislation against mixed marriages, which racists think are bad in themselves and they allege harm to the racial purity of the nation. This is really agreeing with the report's adoption of the harm theory, but differing over what is harm.
The point—and I do not want to go on stressing this—is that this is a moral point. It is a moral judgment on the part of, for example, Professor Hart, the Williams Committee, myself and those like the noble and learned Lord, Lord Gardiner, who agree with me that it is not right for a State to interfere with the free action of an individual, unless that action can be shown to do harm. This leaves plenty of room for argument over what does harm and what does not, and we have had an extensive argument over this. I do not think that the report's conclusions are necessarily the last word on it, but they are at least intelligible.
The point about the report which I think is important is that it comes to quite definite conclusions, after a ruthless examination of evidence, and then it states quite clearly why it does and, finally, it makes precise and workable recommendations. This is surely a long way towards what we all want to do. It is perfectly possible to say, as the noble Lord, Lord Milverton, said, that you must try to suppress pornography altogether. I do not think I know anybody who would not he very glad if you could, but it is an entirely different operation and a much more difficult one from what is suggested here. At least, this is a reasonably practical step and it would do what the Wolfenden Report did for prostitution. It certainly did not cure prostitution, and nobody ever thought it would, 235 but it has made the streets less objectionable to the public.
The various prohibitions which the report has recommended are comprehensive and firm. First, there is restriction. There is no doubt, as my noble friend Lord Ardwick said, that one of the things, above everything, that helps this foully gained money—and I agree with the critics of pornographers that, of course, money is foully gained—is advertising. At least, that is legally banned if this recommendation is adopted. Surely that is good. I cannot understand why we cannot get a more reasonable approach to this report from Members here.
I must make one point here. The noble Lord, Lord Nugent—and, of course, I am grateful to him for starting the debate which has been extraordinarily interesting, though terribly depressing—spoke of wholesale liberalisation. Over literature, for example, there is no change of the faintest importance; over pictorial pornography, there is a very strict tightening-up indeed, and over two kinds of particularly vicious pictorial or live pornography there is a total ban. Surely this is not the same as liberalisation.
Over the question of the written word, this is of course a difficulty. I think that there were two things in the minds of the committee members. The first is that children normally do not read in the way that grown-ups do. Secondly, I think they felt that one should not stop grown-up people from reading anything they want to. I was very surprised at the comments of the right reverend Prelate, which seemed to me to suggest that Das Kapital and Mein Kampf—which I agree, between them, have probably done more harm than any other books in our time—ought to have been banned. I cannot believe he meant that, but it was clearly implied. I do not think that it is the business of the noble Earl, Lord Lauderdale, or of the Government, to tell me what to read and I am not going to accept it at all.
§ The Earl of LAUDERDALE
My Lords, I thank the noble Lord for giving way and I know that he did not want to be snide. But, surely, we all have a right to say that what ends up by cor- 236 rupting the family is something that we all have an interest in getting rid of. Would he not agree that that is a fair formula, and that perhaps we are not so far apart as he has suggested we are?
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, I would not agree with the first sentence, but I would agree with the second. Of course, we want to get rid of pornography. What I would not agree is that there is very much evidence that it corrupts the family—it may—but, in any case, I am for getting rid of it which is what matters. The third point about the written word is that it is historically, and has always been, the way of spreading ideas. Clearly, if somebody is writing something which is pure filth, there are no ideas in it. But how do you distinguish? The right reverend Prelate the Bishop of Durham said that the weakness of all this was that it destroyed institutions and, among other things, the institution of marriage. Does this mean that Bertrand Russell's articles would have been suppressed? What else can it mean? I am not at all with this point of view. I must not keep your Lordships too long, but I have one further point which I simply must make.
The noble Baroness, Lady Faithful], said that ordinary people do not want their families to read pornography. Of course, they do not. That is the point of restricting it. Surely, we are on the same side about that. Maybe it would be better if it were abolished, but at least it is a step in the direction that you are asking for.
§ Baroness FAITHFULL
My Lords, I am grateful to the noble Lord for giving way. What I was referring to was the fact that the written word is completely free and unrestricted, and that, if it is going to be in shops and anyone can buy it, it will be bought and circulated and everybody will see it.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, the noble Baroness says that everybody will see it, but today everybody can see it. You can buy it anywhere without the slightest difficulty. I have never seen it, and I do not suppose that the noble Baroness has ever seen it, because it is not what we want. But people who want it have always been able 237 to get it, and still will. That is inherent in the theory. I shall not say anything about the cinema, because the noble Lord, Lord Birkett, dealt with that very well. The noble Lord, Lord Vaizey, made a very important point, which is that the figures show that one in five individuals between 16 and 65 indulge in this kind of thing from time to time. Incidentally, I think one in eight go to prison, so it is not so very different from other things. All it means is that this is a very serious problem, not that the right thing to do is to suppress it. The right thing to do is to control it at this stage.
I have two particular points on the side of the critics which I should like to make. In the first place, I think that it would have been quite possible for them to go further than they have, but I do not feel that this was terribly wrong. I think that there are great risks in going far. I want to quote a sentence, which I think is rather revealing, which was written by Dr. Peter Scott who died two years ago and who was a member of the Longford Committee. It was written as a separate contribution to the Longford Report. Dr. Scott was by far the best psychiatrist in relation to delinquency whom I have ever met. He understood the sinner's mind, if I may so put it, in a way that few clergy understood it. He said:We mustn't fall into St. Paul's mistake of supposing that sex is only to beget children. You may discuss whether this is morally desirable but not whether it is biologically true, because it manifestly isn't".This means that you have to be very careful before you start to interfere with the private behaviour of people who are different from yourself.
I say no more than that. We must not make criminals out of people who are harming no one but themselves, and perhaps not even themselves. I have to confess that I think that making and distributing pornography is evil, though I am not certain that consuming it is.
There is one other point which I must raise, having been Minister for the Arts. Whenever the noble Lord, Lord Nugent of Guildford, and I have had discussions we have always discussed artistic problems. There is no doubt that the present arrangement by which the public good argument is ruled out leaves some very awkward holes. For example, there are certain 238 works of art to be considered. I give as an example the Verlaine series of Michael Ayrton which is owned by the Fitzwilliam. It is quite definitely obscene; nobody would suggest that it is not. Artistically it is very beautiful and I think that it should be available to people. But if one restricted its availability, as it would have to be under these terms, one would simply have a separate room in the Fitzwilliam and then one would get a long queue of people who wanted to see the sex but who were not interested in the art. This is exactly the opposite of what we are trying to effect, so it has probably got to be re-thought. Works which the directors of galleries regard as potentially offensive should perhaps be kept in private and shown on demand to anybody who wants to see them.
I have spoken long enough and I think that I have made my point of view clear, even though I have not had time to work out the argument. It has been a very useful debate. It is very sad that there is so little agreement among people who all dislike the same thing, but that is what life is like and we have to do the best we can with it. Before I sit down, may I say how much I enjoyed the noble Lord's maiden speech—I jolly nearly forgot to say so! He will have to live a very long time if he is to be the Father of this House! It is much more difficult to become Father of this House than Father of the other place.
§ 9.4 p.m.
§ The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead)
My Lords, this is the first occasion that the House has had the advantage of a speech from the noble Lord, Lord Strauss. With his great parliamentary knowledge and, added to that, his knowledge in this area of theatre censorship, the noble Lord made a speech of such quality that I know your Lordships would wish me to add my voice in saying that we hope the noble Lord is going to be with us for many years and that it will not be very long before he will be speaking to us again.
This is the second occasion within the space of four years that my noble friend Lord Nugent of Guildford has enabled your Lordships to debate this subject. Again my noble friend has expressed his 239 concern with the damage which, my noble friend warns, is inherent in obscene and violent material. If I may, I should like to add a further dimension to the argument of my noble friend.
I believe that the concern of many people over this subject is very often increased by a feeling that any criticism is liable to be dismissed as no more than the personal view of people who are out of touch with modern ideas. Not only has my noble friend Lord Nugent of Guildford, with his usual skill, made a speech which exposes the hollowness of that criticism but the report of the Williams Committee also dispels any such notion. Based upon the careful weighing of its evidence, the committee's report none the less shows that no-one who studies this subject and cares about its consequences can escape the responsibility of having to reach some personal judgments.
I was particularly interested to read in paragraph 1.9 that research has concluded that it is not possible to find out whether or not the mass media—television or films—exercise a socially harmful effect. None the less, when we come to Chapter 12 we find the committee concluding that the pre-censorship of films should continue, not least because members of the committee were obviously shaken by some of the films which they had felt that it was their responsibility to see. So let no-one dismiss personal views which are expressed upon the subject and say that they are of no account. Indeed, it is because my right honourable friend the Home Secretary has already made clear in another place that the Government are anxious to hear the views of Parliament and the public concerning this report that we are particularly indebted to my noble friend for giving us this first opportunity for a debate today in your Lordships' House. Obviously the debate is going to be enormously valuable to the Government when they have such an enormous range of experience contributed to them, ending up most appropriately with a speech by a former Minister for the Arts.
I join with other noble Lords in expressing particularly warm appreciation of the work of Professor Williams and his committee. I suppose it would be predictable if I were to say that the views of the committee were widely representative. 240 But I must confess that ever since some years ago I discovered from the census that, whereas the Registrar-General placed bishops, judges and university teachers in social class one, he relegated ministers of the Crown to social class two, where they have been proud to share that status with housekeepers, sculptors and self-employed agricultural machinery drivers. But I have rather begun to lose faith in the concept that one can put people into different categories.
So may I content myself with saying that, whatever reservations there may be about this report, I am certain that there is a widespread understanding that the committee has done a great service by the lucid manner in which it exposed the issues and the incisive way in which it has presented its conclusions. We would have expected nothing less from a very shrewd and hard-working committee with an obviously outstanding chairman.
As your Lordships are well aware, the committee's first conclusion is that the present laws on obscenity and indecency are, to use their term,"a mess ". They reject the idea that matters can be improved by amending the definitions of"obscenity"or"indecency"and, instead, the committee has suggested that the whole of the present law should be abandoned and replaced by new comprehensive legislation. I speak only as a non-lawyer, but I must say that when the reader learns in paragraph 4.4 of the report that the Director of Public Prosecutions has expressed to the committee the view that it is now quite impossible to be certain of securing a conviction by a jury of even what the director has considered to be a grossly obscene article, one can be forgiven the thought that law reform is overdue. I think that my noble friend Lord Vaizey and indeed the noble Lord, Lord Donaldson of Kingsbridge, said very much the same thing; that those noble Lords in essence were justified in saying that a criterion which the Williams Committee satisfies is the enforceability, the workability, of its proposals. None the less, the proposal for wholesale law reform in this area is a critical question, and even if there is a widespread view that a complete revision of the present laws is required, your Lordships' debate today has shown that it is not going to be an entirely easy task to reach agreement on what should be put in their place.
241 Having concluded that the present law was"a mess ", the committee went on in Chapter 5 to discuss the principles upon which they believed any involvement of the criminal law should be grounded. The committee say they accept that the critical test is whether pornography causes harm; that the test of whether something should be suppressed altogether should be whether it could be shown to harm someone. It is clear that this is an important point of principle. In practice, as the Williams Committee implies it may be that almost everyone would accept the harm condition for the purposes of drafting legislation, but their views on what constitutes harm and on what the onus of proof of harm should be will vary very markedly indeed.
For example, the committee noted, on the one hand, that there was concern, which should be taken seriously, with the pervasive effect that pornography may have on society. When, among the many speeches which have been made on that point, the two noble Ladies who have spoken have joined together from their different positions in the House to agree that this is a matter of particular concern, I think that viewpoint had to be taken very seriously indeed.
On the other hand, as the committee noted there was evidence extolling the virtues of certain kinds of pornography. As to that, the Williams Committee had this comment to make in paragraph 5.12:Any committee enquiring into this kind of subject is likely to encounter a certain amount of humbug. Perhaps the most striking example of it that came our way was the pretence that present day commercial pornography represents some fulfilment of liberal and progressive hopes ".May I quickly say that the splendid speeches that we have heard from the Liberal Benches, and not least from the noble Lord, Lord Wigoder, refute any idea that the committee was in any way making a political reference.
But, having said that, the committee went on to conclude, in Chapter 6, that the only clear harms which they can identify are those involving the exploitation of children or actual physical harm. Accordingly, when the committee came to formulate their detailed proposals it was only material involving either of those two harms which was thought to warrant total prohibition. I think I have 242 heard enough of the speeches which have been made in the debate today to realise the concern which many of your Lordships hold with the idea that really any extensive discussion is needed on this point, on the ground that the harm deriving from pornography is self-evident. I would accept the point that because explicit evidence of harm cannot always be proved that does not deny the possibility of the damage done by pornography. However, from the committee's analysis of harms, which involve lengthy examination of evidence, research and statistics, they confine prohibition to just those two areas which so many speeches today have mentioned. But that is only part of the story, which the noble Lord, Lord Donaldson, was at very great pains to point out in his speech.
I ventured to suggest earlier on in my remarks that any assessment of the consequences of pornography is bound to involve personal judgment. I would guess that many people would have been most uneasy if the committee had left matters there, but they did not. In essence, they recognised the erosion of freedom which the intrusion of obscene material represents. They recognised that many people who feel that pornography is thrust upon them in public find it not only offensive but deeply offensive, and they added this in paragraph 9.7:We conclude, therefore, that the law should primarily aim to restrict pornography so that it will not be offensive to the public, and to satisfy the widespread feeling that young people should not be exposed to material of this kind".So the committee's second approach is what they call restriction, and the test of what matter or performances would be restricted, other than live performances and the printed word, is set out in paragraph 9.36. I do not want to try to add anything to what has been said about that test. Reservations have been expressed today in the debate, both by the right reverend Prelate the Bishop of Durham, and from a rather different angle by my noble friend Lord Nugent and noble Earl, Lord Halsbury. I think that their speeches and other speeches on this particular point of the test in paragraph 9.36 will repay reading.
The scope of restriction is fairly wide. I would like to point that out. I have the impression from many speeches which noble Lords made that the test is whether 243 the material is offensive to reasonable people. But I do not think that is the case. The scope of the test is whether the unrestricted availability of material is offensive, and that is by no means, I would have thought, the same thing. The committee envisage that restriction is to consist of a ban on the display, sale or hire of restricted material, other than by way of post or other delivery, except in premises which from the exterior I rather think are going to resemble Fort Knox. Some commentators have referred to these places, if they were to be set up, as licensed pornography shops, but, again with respect to the views put forward, I do not think that is the case. The committee did not envisage a licensing system. Whether this is the right solution is now a matter for Parliament and for the public to give their views on, but it is worth noting that there is a genuine dilemma here.
We can either seek the full structure of a licensing system which would control the number and location of shops in which restricted material would be available and those who run such places, or we can deny pornography the recognition implicit in such a licensing system, but we cannot have both. The committee thought that the right approach was not to license, and this again is one of the matters on which the Government have certainly not yet formed a view.
I think we have got to face the fact that this debate has shown a fundamental difference of emphasis regarding the balance between prohibition and restriction on the sale of obscene material. As I understand it, my noble friend's and many other noble Lords' case, at any rate the main plank of the case, is that restriction does not necessarily prevent subsequent circulation. On the other hand, the Williams proposals, which envisage an important shift of emphasis in the law, involve less prohibition but tougher restriction. As the noble and learned Lord, Lord Gardiner, asked me to do, I will certainly draw to the attention of my right honourable friend the Home Secretary the particular areas of concern which the commiteee mention at the beginning of Chapter 9 and which they then go on to try to meet. So when the Government come to decide this principal issue which has got to be resolved—namely, whether the committee's proposals achieve broadly the 244 right balance between prohibition and restriction—the Government will have the noble and learned Lord's point in mind.
There are just three brief points to add on the general area of prohibition and restriction. As your Lordships know, or may well remember, my right honourable friend Lord Carr of Hadley, when he was Home Secretary, introduced a Bill to try to curb indecent displays. There have been a number of further attempts to introduce fresh legislation to modernise existing law against indecent displays. Indeed the latest Bill on this subject has recently been given a Second Reading in another place. The Williams Committee considered the effectiveness of an approach on these lines, but concluded that the problem lies not with indecent displays but with displays of the indecent, and to control these one needs to go beyond the content of the mere display itself to the character of the item being displayed. I should like to make clear that the Government are sympathetic towards the present Bill in another place but, as a means of preventing public offence I join with the noble Lord, Lord Donaldson of Kingsbridge, in thinking that the Williams approach would be effective, and I think more effective, than legislation which is confined only to the control of indecent displays.
The second point that I should like to make is, as your Lordships know, that the committee excepted the written word from its proposals, and many powerful speeches have been made in the debate criticising that. All I would say is that if that recommendation were to be rejected it would not be fatal to the broad scheme which the Williams Committee proposes. The written word could, for example, be made subject to restriction when it was such that its unrestricted availability was offensive to reasonable people in the same way as the Williams Committee envisages restriction of pictorial matter.
Thirdly, although the committee has taken the view that a two-tier scheme of prohibition and restriction is appropriate for live shows, it also took the view that the application of the"harm"test would permit the presentation of sexual activity on stage in a way which now happens rarely. Consequently, the committee argued in favour of a test as to whether the sexual activity in a live show is real as 245 opposed to simulated and whether it is offensive. The committee would also prohibit any live performance involving the sexual exploitation of anyone under the age of 16. Because there is no"harm"condition which has to be satisfied here, in that sense as I understand it the test for the prohibition of live shows will be a tougher one than for publications. In any event the Government will continue to listen very carefully as to whether opinion, including opinion in the theatre, supports the distinction which the Williams Committee makes between live performances and publications so far as prohibition is concerned.
Finally, I turn briefly to film censorship, an important subject in its own right and no less than 23 of the committee's 56 recommendations were devoted to it. Of course, the control of films is unique in that it is the only medium in this country in which there is pre-censorship for both adults and children. The committee admitted that it had been, as it put it, totally unprepared for the sadistic material which some film makers are prepared to produce. In a uniquely powerful medium the committee concluded that it would be right, and probably more effective, to continue with censorship rather than to devise legal restrictions. If I may say so, I suspect that few, with the exception of the noble and learned Lord, Lord Gardiner, would dissent from that conclusion.
I am not so sure about the committee's conclusion that local authorities should lose their licensing powers, and the functions of the British Board of Film Censors should be vested in a new statutory film examining board. It was with a sinking heart that when I reached paragraph 12.21 I recognised yet again the establishment of another Quango, but I confess that I brightened up when I realised that the committee's creation of a statutory film examining board is designed to carry on the functions which the British Board of Film Censors now discharges, and that such a board could be largely self-financing. Of course, the Government realise that the self-perpetuating oligarchy of the board—and it is none the worse for that—could hardly be given statutory powers. None the less, the abolition of local discretion on the showing of films and the termination of the board, to whose work the Williams Committee pays testimony, are steps not to be taken 246 lightly, and the creation of a new board raises questions about appointments, qualifications, appeals and immunities from prosecution, which will require careful consideration.
One recommendation which, I am sure, will be widely welcomed is the committee's proposal to control bogus film clubs, excepting only films not shown for private gain. There is a corollary, however, which may be more contentious; namely, the creation of a new category of films to be called Category"18R"which could be shown only in specially designated cinemas approved by local authorities.
At first sight it appears contradictory that a committee which expressly rejected both pre-censorship for publications and a licensing approach for shops selling restricted publications, can then turn round and endorse pre-censorship for films and licensing of restricted films. But I would not suggest that the committee is being inconsistent. I can appreciate the Williams Committee's judgment that a distinct, but not necessarily inconsistent, approach to films is needed. That is not to say, however, that the committee's recommendations are universally acceptable to your Lordships' House. I am not saying that I am leaving this debate with that impression.
I have not mentioned at all such questions as the right to initiate prosecutions, but my noble and learned friend Lord Rawlinson of Ewell, and the noble and learned Lord, Lord Simon of Glaisdale, spoke with authority on that subject. I know that I have not mentioned the scale of penalties or the recommendation for the abolition of forfeiture proceedings. However, on behalf of the Government, I hope that I have made clear that a good deal of thought needs to be given to whether the balance which the committee recommends between prohibition and restriction is generally acceptable.
In making up our minds, let us recognise that it is easier to make general statements about the scope of the law on obscenity than to suggest how new laws might be framed. The debate of my noble friend Lord Nugent today provides a valuable start to the discussion which the report requires, and enables us to hear views on whether the report provides a 247 foundation for new laws in this area to be constructed.
§ Lord PITT of HAMPSTEAD
My Lords, before the Minister sits down would he clarify the Government's attitude on the question of local authorities continuing to have responsibility for film censorship?—because that was the one part of the report of the Williams Committee which I welcomed, having experienced the problem in the past. Is the noble Lord suggesting that it is not a good thing that local authorities should be relieved of this terrible burden of having to decide whether or not films should be shown in their areas; of having to use, in fact, other laws and other powers in order to censor films in their areas? Does he not think that the suggestion that that should stop, and that there should be a straightforward board which carries out the censoring, would be a great improvement? I was a little disappointed in his comment on that particular point, because it sounded to me as though he was suggesting that things should stay as they are. I hope that is not so.
§ Lord BELSTEAD
My Lords, I appreciate that the powers of local authorities concerning film censorship raise certain concerns over anomalies and inconsistencies, of which the local authorities are very well aware. What I said to your Lordships in my speech was that the removal of those powers would be a step which should not be taken lightly. At this stage I do not wish to go further than that.
§ 9.28 p.m.
§ Lord NUGENT of GUILDFORD
My Lords, I should like to say a very few words in conclusion. First, I should like to thank my noble friend the Minister for his very helpful and informative reply to the debate and for the kind things he said about all of us. He very helpfully put the report into perspective. He said that there is a major issue for all of us to seek the right balance between what is to be prohibited and what is to be restricted. He took note of the many things that have been said during the debate, particularly about written material.
On films, I was very happy to hear what he said because it was very much 248 my own view. Despite what has just been said, I hope that the present system is looked at very carefully before it is dropped. There is a certain flexibility about it—a response to local opinion which I believe is a good thing.
To my mind, the major problem that emerges from listening to this interesting debate is whether one could have a two-tier system in conjunction with the restriction of premises for pictorial and written material, and whether it would still be possible to have a prohibited level of these aspects of pornography, which of course is similar to Lord Longford's report of nearly 10 years ago. That is what would appeal to me.
The analogy (which has been quoted several times) with the Wolfenden Report and prostitution is not really a good one. That was a perfectly adequte solution to that difficult problem. It goes on, but it does not trouble too much people who do not want to take part in it. The difficulty about pornography is that if hard pornography in pictorial and written form is to be legal and can be sold freely but in restricted shops, it is not like prostitution, where the customer can go in and be satisfied, and that is it. The customer comes out carrying the goods, which can then be circulated all over the place. This is what is frightening to my mind. I do not feel that I should like to see a free circulation of pictures of every kind of sadism and sexual perversion and bestiality. I really feel that this would be polluting the atmosphere of our country.
I listened to the noble Lord, Lord Macleod of Fuinary, thundering forth like a modern Savonarola about our permissive society. We have got a permissive society. Can we stop ourselves slipping down the slope? Well, not in one measure. On the other hand, there is of course validity in what the noble Lord, Lord Annan, so cogently said, that we cannot go back to 1960, that we are now in 1980; and one has to take some note of that.
I thank noble Lords and noble Baronesses who spoke so cogently, and so much to my way of feeling, for taking part in this interesting debate. The Williams Report is a valuable report, however little or however much one may agree with it. I think that this debate will 249 make a valuable supplement to it. Certainly I intend to read it carefully, to try to reach a judgment in my own mind on how I would advise my noble friend and the Home Secretary to proceed. I thank all noble Lords most warmly for helping me to make what I believe has been a useful contribution on this difficult subject. Not least I should thank the noble Lord, Lord Strauss—who is now no longer present—for his admirable maiden speech, which I enjoyed very much. I look forward to hearing him often again. With those warm words of thanks to all noble Lords, I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.